This summary of age discrimination law in France has been prepared by Capstan, the Ius Laboris member for France: www.capstan.fr
OVERVIEW
French discrimination law is constructed first and foremost on the basis of the principles of equality and freedom invoked in numerous fundamental constitutional and international texts. Many protected characteristics are set out in French law, including age.
Under French law, age discrimination legislation is based on both labour law and criminal law provisions. Pursuant to these provisions, as a general principle, any distinctions justified by the age of the individual must be considered as illegal.
There is a specific definition in French law of direct and indirect discrimination, similar to the one contained in the European Directives and covering all types of discrimination, including age. Direct discrimination arises when an individual is treated less favourably than another individual in a comparable situation. Indirect discrimination concerns apparently neutral measures, criteria or practices which may appear neutral but may confer a disadvantage on an individual compared to others, unless these measures, criteria or practices can be objectively justified by a legitimate purpose and if the means used to achieve that purpose are necessary and appropriate.
Difference of treatment based on the age of the individual may not be considered as discrimination when it is objectively and reasonably justified by a legitimate purpose – notably the need to safeguard the health and safety of the workers concerned, to favour their professional insertion and to ensure their employment or their redeployment and financial compensation in case of job loss – and when the means used to achieve this legitimate purpose are necessary and appropriate. This may notably include the prohibition of access to employment or the establishment of special working conditions to ensure the protection of elderly workers or the setting of a maximum age for recruitment based on the training required for the position concerned or the need for a reasonable period of employment before retirement.
The French labour code also prohibits internal company rules and regulations from including provisions injurious to employees of equal professional ability in their work or employment on the grounds of protected characteristics, including age.
SCOPE OF APPLICATION
The scope of the age discrimination laws (criminal law and labour law) extends to all individuals.
The employment law provisions cover all employees bound by a contract of employment covering all aspects of an employment relationship, including: the recruitment procedure, access to training courses or in-house training periods, disciplinary procedures, dismissal procedures, remuneration, profit sharing or share distribution, training, redeployment, assignment, qualification, classification, promotion, transfer and contract renewal. This is not exhaustive.
Identical provisions also apply to public servants.
Discrimination perpetrated by representatives of the public authorities is set out and made illegal as per article 432-7 of the Criminal Code. This refers to the general criminal provisions which establish the definition of discrimination.
ENFORCEMENT
Both civil and criminal sanctions can be imposed.
Civil sanctions
Any illegal discriminatory provision or act with regard to an employee shall be deemed legally invalid and considered as null and void. More specifically, the law expressly considers that the dismissal of an employee following a discrimination law suit brought by or on behalf of the employee which is not justified by real and serious grounds and which appears to result from the law suit, must be considered as null and void.
The employee concerned must be reinstated which shall in practice result in the payment of all remuneration and advantages he/she would have been entitled to as an employee between the termination date and the reinstatement date.
If the employee concerned does not request to be reinstated or if the reinstatement is impossible, he/she will be eligible for damages equal to at least 6 months of salary. Such indemnity is granted in addition to the payment of all remuneration and advantages he/she would have been entitled to as an employee since the termination date.
If the employee refuses to carry out his/her functions because of an illegal discriminatory measure, he/she shall be eligible for damages calculated according the length of service in the firm and the severance payment provided by law and the applicable industry collective agreement or employment agreement.
With respect to civil claims and the rules governing proof, the law establishes a change in the burden of proof in cases brought before the labour courts. According to the legal principle of the reversal of the burden of proof, the affected individual is only required to present elements suggesting the existence of direct or indirect discrimination. In view of these elements, the defendant has to prove that its decision was not discriminatory and was based on objective elements unrelated to any discrimination.
Civil claims relating to employment relationships are brought before labour tribunals.
French law allows associations and unions to take legal action. The labour code stipulates that a trade union may take legal action on behalf of an employee in relation to discrimination. Furthermore, if requested by an employee, a trade union may also assist and represent him/her before a labour court or a social security court.
There are also non-profit associations in France that assist with anti-discrimination claims.
Criminal sanctions
Subject to limited exceptions, discrimination against a natural person is sanctioned by up to three years’ imprisonment and a fine of up to €45,000 (article 225-2 of the Criminal Code) in cases where the discrimination consists of:
1° Refusing to supply goods or services.
2° Obstructing the normal exercise of any economic activity.
3° Refusing to employ, imposing a disciplinary sanction or dismissing a person.
4° Making the supply of goods or services subject to a condition in relation to a protected characteristics.
5° Making an offer of employment, a request for an internship or a period of in-house training subject to a condition in relation to a protected characteristics.
Under the Criminal Code, where a legal entity has been found to have discriminated against an individual, it may be liable to fine of up to €225,000 and to possibly some additional sanctions, namely the dissolution of the legal entity, the publication of the judgement, the ban of the exercise of a determined professional activity, the closure of the company’s establishments or the exclusion from public contracts
“Testing methods” (random testing in the form of a survey for example) can be legally used in order to bring evidence of the discrimination in court.
The “Rights Defender” (Défenseur des droits) is a specifically dedicated independent administrative authority responsible for ensuring that rights and freedoms are respected. Any discrimination issues can be laid before this independent body through broadly defined procedures of referral. The Rights Defender is empowered to deal with any type of discrimination on grounds related to age (direct or indirect) and it has been given powers to provide information and advice, and to undertake investigations and mediation. This body is also able to take legal action. It however, cannot impose sanctions.
DISCRIMINATION CLAIMS
According to a report drawn up for 2022, 41% of the 6,545 claims for discrimination referred to the Rights Defender in 2022 concerned employment-related claims and 4% of claims concerned discrimination based on age.
Law suits brought before the labour courts are mainly secondary claims in the context of dismissal, although if an increased number of legal actions grounded by trade union activities are brought before the labour courts.
The claims brought before the labour courts are mainly grounded on the equal treatment general principle notably concerning the remuneration and the granting of specific advantages, and trade union activities.
"TRICKIEST" ISSUES
The trickiest discriminatory risks identified relate to the recruitment and the dismissal of senior employees. Since 2013, there has been more of a trend to increase the level of employment of senior employees through specific measures to secure their career path, to facilitate the redeployment of senior employees and to manage retirement.
RETIREMENT AGES
Any clause, pursuant to which the contract of employment is automatically terminated because of the age of the employee or his/her entitlement to a full state pension, is null and void.
For an employer to unilaterally terminate the employment of an employee under an involuntary retirement circumstance, the employee must have reached the age of 70. Between 67 and 69, the employer can only ask the employee in writing about his/her intention to leave the company voluntarily in order to receive retirement benefits.