France: Anti-discrimination law passed

The French government has passed an anti-discrimination law that strengthens existing measures to combat discrimination at the workplace. This law complements current rights contained in the Labour Code and brings French law into line with the European framework equality Directive adopted in October 2000.

The new law predominantly affects a number of articles in the Labour Code, but also introduces some changes in other Codes, such as the Criminal Code and the Social Security Code. It has extended the scope of the existing anti-discrimination law to cover discrimination based on sexual orientation, physical appearance, surname and age. The anti- discrimination rules concerning recruitment, disciplinary procedures and dismissal have been widened to include any form of discrimination regarding pay, training or job reclassification. In cases of alleged discrimination, the burden of proof no longer rests with the victim. Additionally, labour inspectors have increased powers to monitor workplace discrimination, and unions have increased rights to take up cases of alleged discrimination.

Anti-discrimination legislation in the European Union

Anti-discrimination legislation has formed a key part of European Union legislation over time. Articles 13 and 141 of the Treaty of Amsterdam of 1997 laid the foundation for much of the legislation that is presently being enacted in member states. This has been realised through two framework Directives based on Article 13 of the Treaty - on racial equality (2000/43/EC), adopted in June 2000, and the framework Directive on equal treatment in employment and occupation (2000/78/EC), adopted in November 2000.

This latter framework Directive forms the basis for the new French law. This Directive explicitly states its purpose as to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation with regard to employment and occupation. Member states have, in the first instance, until 2 December 2003 to transpose the Directive into national legislation.

Details of the new law

Grounds for discrimination

Discrimination was already prohibited by French law on a number of grounds: origin, sex, lifestyle, family situation, ethnic background, race, political opinions, trade union activity, religion, health or disability. The new law significantly strengthens several clauses in the Labour Code (in particular, article L122-45) and introduces a clause referring to direct or indirect discrimination. It adds the following to the list of grounds on which discrimination is prohibited: sexual orientation, age (in certain cases), physical appearance and surname. Discrimination on grounds of age is permitted in specific cases: to protect younger or older workers from an unsuitable workplace; and to allow for the fact that a newly recruited employee should be expected to be able to work for a reasonable length of time before retiring.

Whereas previously only the recruitment, disciplinary and redundancy processes were subject to anti-discrimination law, the law now covers training, pay, regrading, qualifications, promotion, and contract changes or renewal, thus having a significant impact on the workplace environment.

Burden of proof in cases of alleged discrimination

The new law introduces changes regarding the burden of proof in cases of alleged discrimination, which brings French law into line with EU legislation, in the form of the 1997 Directive on the sharing of the burden of proof in cases of alleged sex discrimination (97/80/EC). Member states had been expected to implement this into national legislation by 1 January 2001. Previously, under French law, it was contingent on the victim to prove that they had been subjected to alleged discrimination. The new law makes a significant difference in favour of the employee (usually the victim) in that it is up to the employer (usually the defendant) to prove that the alleged discrimination has not taken place.

Punishment for breach of the law

Where alleged discrimination is proved, the perpetrator could be subject to a fine of Fr200,000 (Euro 30,303) and two years' imprisonment.

Increased powers for labour inspectors and unions

Labour inspectors have increased powers to search for and use any documents in order to establish the facts of a case of alleged discrimination. This also includes the personal testimony of other workers, who are themselves now protected by the law.

Nationally recognised unions have a new role that allows them to bring discrimination cases before the court without the worker concerned explicitly requesting the unions' support. However, the employee must be informed of this decision on the part of the union. The employee may also inform the union within 15 days if he or she decides they do not wish the case to proceed.

Public service employees

The law dating from 1983 (83-634) on the rights and obligations of civil servants has also been amended to take into account the new grounds for discrimination.

Advice and information line on race discrimination

In the interests of identifying and preventing racial discrimination, the law provides for a free, confidential, telephone helpline for workers who consider themselves to be victims of racial discrimination, as well as workers who wish to report that they have witnessed racial discrimination. This service is available to employees in all enterprises covered by the Labour Code, as well as regional authorities and public sector institutions.

Michel Caron, general secretary of France's largest trade union confederation, the CFDT, welcomes the law - in particular, the shifting of the burden of proof from the alleged victim of discrimination to the defendant. However, he comments that it should be seen as a basis for further development in the anti-discrimination area, and not as an end in itself. The employers' associations have not commented publicly on the legislative changes.