France had technically been without a law prohibiting sexual harassment since 4 May 2012, when the Constitutional Committee (Conseil constitutionnel) held that the provision previously included in the Criminal Code (at Article 222-33) was void on the grounds that it was insufficiently precise and therefore unconstitutional.
The new law re-establishes former article 222-33 of the Criminal Code, but defines sexual harassment more precisely as two offences:
- The criminal offence of sexual harassment by repeated words or actions of a sexual nature.
- The criminal offence of sexual harassment by sexual blackmail.
Sexual harassment is defined as:
".. the fact of imposing on someone, in a repeated manner, words or actions of a sexual nature which either undermine their dignity by reason of their degrading or humiliating nature, or create an intimidating, hostile or offensive situation".
or ".. the fact, even where there is no repetition, of using any form of serious pressure in the real or apparent aim of obtaining an act of a sexual nature, whether for the benefit of the author of the actions or the benefit of a third party".
The sanction for these criminal offences is 2 years imprisonment and a fine of 30,000€ (3 years imprisonment and a fine of 45,000€ in the case of aggravating circumstances). Aggravating factors may include (without limitation) the author of the offence abusing his or her authority, a victim's age or other particular vulnerability, the victim's pregnancy or the precariousness of the victim's economic or social situation.
The new law will not apply retroactively to cover the period from 4 May 2012 or to words/acts prior to 4 May (which cannot now be criminally prosecuted as the former definition has been held to be unconstitutional – although the criminal judges are empowered to award damages under civil law in such circumstances).
An identical definition is now also cross-referred to in the Labour Code (new Article L.1153-1), which prohibits sexual harassment.
Employers must ensure that the text is posted on a notice board at the work place and location at which an employee is recruited and have a general duty to prohibit sexual harassment in the workplace. The Company Doctor also now has a role in seeking to prevent sexual or moral harassment.
Discrimination linked to sexual harassment
The new law also adds to the list of prohibited discrimination linked to sexual harassment "any distinction between persons because they have suffered or refused to endure acts of sexual harassment .. or have given evidence in relation to such matters..".
The additional civil sanction for acts of discrimination in relation to moral or sexual harassment is one year's imprisonment and a fine of 3,750€.
The new law also doubles the sanctions for moral harassment (increasing these to 2 years imprisonment and a fine of 30,000€.