Bill on new anti-discrimination measures
In October 2000, the French National Assembly adopted at first reading a bill seeking to extend and strengthen legislation against discrimination in employment. If passed by the Senate, the new law would apply anti-discrimination legislation to a wider range of grounds and employment situations and amend the rules on the burden of proof.
On 12 October 2000, the National Assembly adopted at first reading a bill introduced by a Socialist Party deputy, which aims to extend the scope of legislation against discrimination at the workplace. The bill must now be debated in the Senate. The proposal seeks both to transpose aspects of recent EU legislation into French law, and to expand current anti-discrimination provisions in the Labour Code (Code du travail) in order to afford greater protection to job applicants and employees throughout their careers and on new grounds. The bill's four articles both strengthen and expand on the existing legislation.
The main provisions of the bill are as follows:
- Extended scope of protection. Currently, the Labour Code provides for sanctions against discriminatory practices only where an applicant is turned down for a job, an employee is made redundant or in connection with disciplinary measures. The bill would extend this protection to a person's entire career - ie including the areas of pay, training, qualifications, transfers and promotion.
- Prohibiting discrimination on new grounds. The reform would expand Article L.122-45 of the Labour Code, which currently protects job applicants and employees from discrimination based on origin, gender, political views, trade union activities, and religious beliefs. The bill seeks to lengthen the list of grounds for discrimination to include sexual orientation, as gay and lesbian rights organisations have been demanding. Additionally, the list would also include physical appearance (height and weight) and surname. Martine Aubry, the Minister for Employment and Solidarity until 17 October 2000, stated that it had to be made clear "to all victims of discrimination, whether women, people with disabilities, foreigners, immigrants, gays or lesbians, that our Republic is there to ensure that their rights are respected." She labelled all forms of discrimination as "unacceptable violence".
- Amending the burden of proof. A crucial provision of the bill deals seeks to redraft the burden of proof rules in the existing legislation. It would transpose into French law the amendment to the burden of proof in discrimination cases introduced by the recent EU Council Directive (2000/43/EC) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F). The onus is currently on employees to prove that they have been discriminated against, which contributes to the low number of convictions. Under the terms of this bill, the burden of proof would now be shared by the employer. According to Philippe Vuilque, the deputy responsible for presenting the bill to the Assembly, "the employee will have to produce evidence implying that discrimination has occurred. If this evidence is strong enough, it will then be up to the employer to prove that its decision was based on objective factors. The role of the judge will be to decide whether to rule in favour of the employer or the employee".
- Involvement of unions and voluntary organisations. Unions would have the authority to bring court cases on discrimination matters in the place of the employee, unless the latter objects. Moreover, the social partners would be called on to ensure that the new anti-discrimination measures are applied in all collective agreements. Labour inspectors would have more opportunity to report offences. Lastly, the unions' right to bring alleged offences to the notice of the authorities would be extended to voluntary anti-discrimination organisations.
The CFDT trade union confederation welcomed this bill, which it felt would "enable real advances to be made in the workplace". The CGT confederation stated that the bill "is a positive asset in the fight against the scourge" (of discrimination), but that "some improvements are required to make it really effective." It has suggested, among other measures: "placing the burden of proof entirely with the employer, in civil law, for employees without access to information"; "altering the system of evidence so that it is more generous to the victim than previously"; and "bringing the Labour Code and the Criminal Code into line so that all forms of racial discrimination are punishable by law". CGT-FO greeted the bill's adoption by the National Assembly, calling it a "big step forward", and stated that it had "been laying the groundwork for several years over the need to examine the issue of discrimination as a whole".