The French Supreme Court recently held that an employer had unlawfully discriminated against an employee where it was unable to provide an adequate explanation for the apparent slowdown in his career progression. This case has serious implications for employers in terms of the lengths they will be required to go to in order to prove there has been no discrimination.  

Mr Soumaré was employed by Renault for 27 years. He retired in 1997, but some years later he brought a claim of race discrimination arguing that during his employment he had encountered more difficulties than his colleagues in moving up the career ladder and this was because of his skin colour and/or his ethnicity. The Labour Court dismissed his claims, but he lodged an appeal before the Court of Appeal which was successful.  

The French Supreme Court has since upheld the Court of Appeal’s decision and awarded Mr Soumaré €249,000 by way of compensation. It also ordered Renault to pay €3,000 to the CGT union and to MRAP, an anti-racist organisation. The Court’s approach in this case has caused a great deal of alarm and prompted much criticism. Its decision was based on the findings of an expert who was appointed during the appeal proceedings and concluded that, based on a sample group of 51 employees, Mr Soumaré had progressed more quickly than his colleagues at the start of his career, but had later encountered more difficulties than the statistically “average” employee in progressing up the career ladder. As Renault was unable to provide an adequate explanation for the apparent slowdown in Mr Soumaré’s career progression, this was sufficient in itself for the Supreme Court to infer discrimination. It said that Renault had not discharged the burden of proof proving that there had been no discrimination. It is worth remembering that in discrimination claims, once a prima facie case has been established, the onus is on the employer to prove that it did not discriminate and if it cannot do this the Courts must find that the employer has committed an act of discrimination. Pretty much a case of guilty until proven innocent.  

The Court’s approach in this case seems in effect to grant employees the right to an “average career”, i.e. all employees should be able to progress up the career ladder (and receive the equivalent salary increases) in the same way. But is this realistic? Surely the whole point of an average anything, career included, is that it is composed of some who do better and some who do worse? This finding appears to ignore this, giving the ethnic minority (or by logical extension, female) employee a right to do better than those forming the below-average population.  

And how are employers supposed to provide the evidence necessary to satisfy the burden of proof in discrimination cases such as this? The standard seems to have been set unrealistically high. Would it not have been more appropriate to assess the employee’s actual skills and capabilities in order to determine whether his slower advancement was justified, rather than comparing him to a sample group?

Unfortunately this ruling seems to open the door to an unlimited number of claims by those disappointed with the progress of their career relative to their colleagues. We must hope that it is swiftly disapproved.