France: National diversity accord signed
A new national multi-sector agreement on diversity in enterprises aims to prevent discrimination and promote diversity in the workplace, through a mix of "obligations" and "recommendations". Some key mandatory measures will, controversially, apply only to companies with 50 or more employees.
A draft diversity agreement was reached on 11 October 2006, at a seventh negotiating meeting between the social partners. The employers' confederation, Medef, had launched the discussions in February 2006 in response to President Jacques Chirac's call for businesses to fight the "poison" of discrimination, following widespread social unrest in cities across the country in November 2005. The three central employers' organisations (Medef, UPA and Cgpme) have agreed to sign the accord, and it seems likely that four of the five representative trade union confederations (FO, CFDT, CGC and CGT) will sign it. Only the white-collar CFE-CGC has refused, claiming that the text merely expresses "good intentions".
The accord aims to prevent discrimination in the workplace on grounds of: sex; sexual orientation; habits/lifestyle; age; family situation or pregnancy; origins; the appearance or non-appearance, real or supposed, of belonging to a particular ethnic group, nationality or race (in line with EU Directive 2000/43/EC on discrimination on grounds of racial or ethnic origin - EIRR 318 p.2); political opinions; trade union activities; religious convictions; physical appearance; family name; or state of health or disability. It seeks to ensure equal treatment in the workplace for all employees, in particular with regard to recruitment, work assignment, pay, vocational training and career development.
The agreement contains a mixture of "obligatory" clauses from which companies will not be allowed to derogate and suggested procedures, which will not be mandatory. However, one of the main trade union criticisms is that smaller businesses - which account for most new recruitment - are not covered by some of the most important compulsory clauses, which apply only to companies with works councils (those with 50 or more employees). An example is a new obligation to establish a diversity committee.
Guiding principles
The agreement seeks to go further than existing legislation outlawing discrimination in the workplace. It stresses how important it is to involve staff at all levels within a company, suggesting that employers demonstrate their commitment to promoting diversity by appointing a "diversity officer" to be in charge of implementing company policy.
The accord imposes an obligation on enterprises to involve employee representatives in the promotion of diversity. It requires companies to ensure that all employees, including top management, are sensitive to the dangers of "stereotyping" and actively reject this practice. To this end, all employees should receive diversity training. The text calls on the sectoral social partner organisations to help combat discrimination.
Recruitment
The accord's section on recruitment procedures contains both obligatory and recommended measures. All companies are required to ensure that recruitment criteria are based on competence and ability to do the job, and do not take into account other factors, such as physical appearance, name, place of residence or place of birth. Enterprises must consult with employee representatives prior to introducing appropriate non-discriminatory recruitment procedures. They are also expected to expand their recruitment pools.
In terms of recommendations, this section encourages companies to experiment with alternative non-discriminatory recruitment procedures, aimed at ensuring candidates' anonymity. These could include the use of anonymous CVs. An initial evaluation of such measures - as well as other company-level procedures - will be carried out by 31 December 2007. Equality legislation adopted in March 2006 provided that recruitment to companies with 50 or more employees should take place under conditions of anonymity (France: New measures to improve equality of opportunity). However, in the light of the new diversity agreement, the decree implementing this provision has been shelved temporarily to allow the social partners to try out and assess a range of anonymity procedures.
Career progression
All the agreement's provisions on career progression are obligatory.
In the first place, the accord states that competence and performance should be the only criteria dictating career development. Companies are expected to ensure that all employees have an equal chance of progressing in their careers, regardless of their background, and must use proven non-discriminatory appraisal procedures. Employers must consult with employee representatives on how best to ensure that those people responsible for carrying out appraisals are made aware of and use suitable methods.
The agreement recognises the key role played by vocational training. Thus, it calls on sectors and companies to specify how they will provide equal access to vocational training for all employees (in accordance with the requirements of the national training accord concluded in December 2003 - EIRR 358 p.21).
Good practice
To disseminate examples of good practice, the accord provides for the establishment of a joint, multi-sector working group, which will compile an inventory of examples of good practice at all levels, such as training measures, internal or external communication methods, internal testing procedures, carrying out opinion surveys and trying out different recruitment methods. The working group will also investigate how best to promote non-discrimination, equal opportunities and diversity.
Implementation at sector level
The accord obliges the sectoral social partners to promote diversity and equal treatment in all negotiations, but it does not contain a specific requirement for them to open negotiations on diversity issues. This measure is regarded as weak by some of the union confederations. It attracted sharp criticism from the CFE-CGC representatives, who compared it unfavourably with the recent multi-sector accord on the employment of older people (France: National accord on older workers), which obliges the sectoral social partners to open negotiations on this issue within six months of the accord coming into force. The CFE-CGC also made the point that, even under these circumstances, only a few sectors have fulfilled this obligation; the implication is that the sectoral social partners will be unlikely to take any steps if they are not obliged to. The CFTC also questioned the value of this section of the accord.
The agreement provides for a special joint commission to examine its implementation at enterprise, sector and regional levels two years after it comes into force. The FO union confederation feels that this examination may be insufficient at sector level. Speaking for the employers, Cathy Kopp, the chair of the Medef negotiating committee, stressed the important role to be played in company-level evaluation by the newly established diversity committees (see below), which are due to be in place in 2007. She said that evaluation would be possible in those sectors that have concluded a diversity agreement by then.
Implementation at company level
Here, the main criticism raised by the union confederations is that many of the obligations apply only to companies with works councils. This means that smaller companies (with fewer than 50 employees and to which works council legislation does not apply) are not bound by the agreement. Further, in the absence of a sectoral or company agreement providing a regular exchange of information about diversity, the works council is entitled only to "information" on diversity-related issues once a year. It has no consultation rights in this area - another point that was criticised by the union confederations.
Unions had been calling for a "space for dialogue" on diversity issues, and the accord's introduction of an "expanded diversity committee" goes part of the way towards fulfilling this. This means that works councils will hold special sessions to discuss diversity issues, during which they will be joined by union representatives and other employee representatives. This measure was broadly welcomed by the unions, but some aspects were criticised. The FO complained that the new committee does not have an "evaluative" role and other unions criticised the fact that it will apply only to enterprises with works councils - in other words, those with 50 or more employees. Time off for activities related to serving on this committee will be calculated in addition to other works council duties. These committees may only be established once a sectoral agreement has provided the framework.
Small and medium-sized enterprises
Finally, the agreement has been criticised for "recommending" that those enterprises that do not fall under works council legislation (those with fewer than 50 employees) need only address the issue of diversity once a year with their employee representatives, if they have them. The unions argue that most recruitment in France is to smaller companies, in which topics such as diversity are often not addressed. Overall, the unions are concerned that many small and medium-sized enterprises (SMEs) will be able to avoid implementing certain key measures contained in the accord.
Reactions
Unions
As indicated above, the trade unions have expressed reservations about several aspects of the accord. Nevertheless, the CFE-CGC is the only confederation that is refusing to sign it.
The CFDT and the CFTC were the first unions to indicate that they would sign the agreement. François Chérèque, the CFDT's general secretary, welcomed the accord, which he said was "the first of its kind" and which "marked a significant advance in rectifying unequal treatment of employees linked to discrimination on account of their real or supposed origins". At the same time, Jean-Louis Malys, the CFDT's negotiator, acknowledged its limitations, in particular, in relation to very small, small and medium-sized enterprises. Additionally, he said that the CFDT would have liked to have seen some sort of regional diversity forum established. As for the introduction of anonymous CVs in all companies, which the accord falls short of requiring, Chérèque felt that it would have been counterproductive to have made this compulsory.
Pascale Coton, on behalf of the CFTC, welcomed the mandatory elements of the accord and stressed the key role that would be played by the new joint commission to investigate and disseminate examples of good practice in the area of diversity.
The FO welcomed the "first step" in addressing all types of discrimination, although it regretted that the new diversity committee would be established only at companies with works councils, criticising the accord for not requiring this of smaller companies. However, it welcomed the fact that the agreement would provide the opportunity for the unions to demand a dialogue on issues related to diversity.
The CGT promised a final decision on 23 November, having indicated that it broadly supported the accord, although it demanded "minor modifications".
By contrast, Alain Lecanu, the general secretary of the CFE-CGC, called the accord "totally empty" in an interview with the business paper, Les echos (7 November 2006). He warned that it will introduce a "new type of discrimination" - between employees at companies with 50 or more employees and those with fewer. He criticised what he saw as a lack of measures directly related to recruitment - which, in his opinion, comprises the "central issue" - explaining that he failed to see how it is possible to talk about diversity without fully addressing recruitment. He said that it was "all very well" to set up a joint commission to investigate good practice, but that this measure did not amount to "concrete action". Instead, he stated that it would lead to the waste of "precious years". He said that "simple measures" should have been introduced, such as making job interviews more objective by imposing a requirement that they could not be carried out by one person alone. Lecanu criticised the fact that the new company-level diversity committees are only entitled to information, and do not have consultation rights, as well as the fact that enterprises of fewer than 50 employees are not required to set them up.
Employers
All three main employer organisations announced that they would sign the agreement. For Medef, Kopp welcomed the fact that enterprises were encouraged, not forced, to introduce anti-discrimination measures in relation to recruitment and career development. She said Medef was sorry that the CFE-CGC would not sign the accord, commenting that it was "impossible to satisfy everyone", even with a good agreement. Medef felt that the unions had demanded more than could be achieved and that it had gone as far as its members would let it. Kopp also observed that many companies are already making efforts to address diversity-related issues.
The Cgpme, representing SMEs, welcomed the fact that the accord imposed few obligations on companies, although it still highlighted the importance of addressing diversity. The crafts employers' federation, Upa, stressed how important it was for small companies to find appropriate means to deal with diversity.
