Recent laws in France have focused on strengthening the fight against sexual harassment and gender-based violence, leading employers to consider the steps they must take to fight such conduct in the workplace.
In a survey published in 2018, nearly one in three French women (32%) reported experiencing some form of sexual harassment during their careers, and 80% said that they have been confronted with sexist attitudes or decisions. French President Emmanuel Macron indicated in 2017 that he will make gender equality the “great cause” of his five-year term. Recently, a law dated August 1, 2018, reinforcing the freedom to choose one’s professional future and a law dated August 3, 2018, strengthening the fight against sexual and gender-based violence have reinforced employers’ obligations to prevent sexual harassment in France.
Sexual Harassment and Sexism Defined
Sexual harassment includes repeated acts or conduct with a sexual connotation that either violates the dignity of the employee because of its degrading or humiliating nature or creates an intimidating, hostile, or offensive situation against him/her. It also includes the act of exerting any form of serious pressure, even if not repeated, for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party.
Sexual harassment is also established when comments or conduct are imposed on the same victim by several persons, in a concerted manner or at the instigation of one of them, even though each of these persons has not acted repeatedly. It may also occur when these comments or behaviors are imposed on the same victim, successively, by several persons who, even in the absence of consultation, know that these comments or behaviors characterize a repetition.
Moreover, the law no longer limits sexual harassment to hierarchical relationships, such as between an employee and his/her manager. Therefore, it can exist between colleagues but also between an employee and a third person of the company, e.g., a customer or supplier.
Sexual harassment can also occur outside the time and place of work (on a company holiday or business trip, for example).
While this definition is very wide, since the burden of the proof is shared between the parties (the alleged victim must provide evidence suggesting the existence of harassment and the alleged perpetrator must prove the absence of harassment), it is often quite difficult to demonstrate the existence of sexual harassment before the tribunals.
On the other hand, sexist conduct is defined as any conduct related to the sex of a person for the purpose or effect of violating his/her dignity or creating an intimidating, hostile, humiliating, or offensive environment. No repetition of the facts is required and this type of offense can be characterized without any act of sexual violence or sexual or moral harassment.
Gender-based behavior exists when the following three elements are met:
- The existence of one or more facts, which may take different forms (behavior, speech, acts, writing), suffered by a person
- The purpose or effect of these facts is to violate the employee’s dignity or create an intimidating, hostile, humiliating, or offensive work environment
- The existence of a link between the facts suffered and the person’s sex
What Should Employers Do (or Not Do) in France?
The prevention of sexual harassment and sexism is part of an employer’s general obligation to preserve its employees’ health and safety. Employers are required to take all necessary measures to prevent, stop, and punish acts of sexual harassment and sexism. Therefore, employers cannot just ignore claims of sexual harassment or sexism.
According to case law, this is a reinforced obligation of means. The employer may only be excluded from liability if it has taken all the preventive measures incumbent on the employer and appropriate to put an end to the reported behavior.
The employer has many preventive measures against sexual harassment and gender-based behavior at its disposal, including the following:
- Complying with the obligation to display the provisions of the Criminal Code on sexual and gender-based violence.
- Posting on the premises the contact details of competent authorities and services and the possibility that civil or criminal actions may result from sexual harassment.
- Implementing policies and/or an ethical code.
- Implementing a professional alert guaranteeing the traceability and confidentiality of any report of sexual harassment.
- Integrating the risks associated with any gender-based behavior into the sexual harassment prevention plan.
- Including a reminder in the internal regulations of the provisions relating to moral and sexual harassment and sexist acts, and the procedures that victims or witnesses of such behaviors/acts must follow.
- Training employees to be effectively informed of the legislation on harassment in force.
- Mandatory by 1 January 2019 for any company with 250 or more employees: Nominating a reference person whose task will be to guide, inform, and support employees in their fight against sexual harassment and sexist behavior. More precisely, his/her mission will consist of
- initiating procedures to put an end to the reported acts,
- alerting management, and
- establishing records that could potentially be used as evidence.
It should be noted that companies with fewer than 250 employees are not under the obligation to nominate a reference person. However, it is highly recommended to have a reference person in all companies (for example, the human resources manager).
In case of an incident, the employer should immediately conduct an investigation to ensure that the matter is promptly examined and treated with complete confidentiality by interviewing not only the persons involved but also their colleagues. The employer may use a standard questionnaire with a chronological account of facts, medical certificates, and written testimony.
The investigation should be conducted by an ombudsman (if any) of the company/group or by an external advisor (attorney, HR consultant, etc.). The employer should involve staff representatives (whom it could ask to participate in the investigation), the labor inspector, and an occupational doctor.
The employer must take precautionary measures such as the temporary layoff or reassignment of the employees concerned. These protective measures fall within the prerogative of the employer; employers need not obtain the prior agreement of the persons concerned, given the temporary nature of such measures, on the one hand, and the legal obligation of ensuring the protection of the employees, on the other hand.
Finally, if the investigation demonstrates that there was sexual harassment and/or sexist behavior from one employee toward another, the employee who has misbehaved should be sanctioned and, in the case of sexual harassment, dismissed for gross misconduct.
In conclusion, the strengthening of tools to fight sexual harassment and sexism in France is part of the broader context of increased awareness of the intolerable nature of sexual and gender-based violence, of which women are often the main victims.