The matter of age discrimination is a particularly sensitive issue in France, where the relatively high unemployment rate of young and aged persons is structural.
In this context, there exist specific legal provisions particularly with regard to the employment of young workers. There is also a national-interprofessional collective bargaining agreement with respect to older workers which recommends ensuring the compatibility of the working environment with the capacities of such workers. However, employees’ protection is principally ensured through the general principle of non-discrimination in the workplace, which prohibits any employer from treating an employee differently on the basis of certain illicit grounds such as the employees’ age. Any employer who does not comply with this prohibition and thereby discriminates against an employee on the basis of his/her age faces the same sanctions as those applicable to any other type of discrimination, including criminal sanctions (up to 3 years’ imprisonment and a fine of 45,000 € for an individual and 225,000€ for a legal entity) as well as the nullity of any decision made in disregard of such principle, in addition to possible damages as compensation for any loss suffered as a result of the discrimination.
However, the general prohibition of discrimination still authorises differences of treatment provided that such differences are justified by an essential and direct professional requirement, as long as the objective is legitimate and the requirement is proportional. More specifically, age can be a valid cause for difference of treatment if such difference is objectively and reasonably justified by a legitimate goal and provided that the means to achieve such goal are necessary and appropriate.
In this context, French employment law provides that differences of treatment by reason of age may, in particular, consist of:
– the prohibition of access to employment or the implementation of specific working conditions so as to ensure the protection of young and aged workers.
– the setting of a maximum age for recruitment, based on training requirements for the position concerned or the necessity for a reasonable period of employment to be effected before retirement.
In practice, case law regarding employers’ infringement on the prohibition of age-related discrimination has mostly focused on the ability of employers to terminate an employee on the basis of his/her age. In this regard, the automatic termination of employment upon the reaching of a certain age is expressly considered by legal provisions to be illicit and sanctioned by nullity. In addition, the Supreme court has cancelled decisions to terminate employment contracts based in particular on regulatory and conventional provisions which provided for the early mandatory retirement of specific personnel (railway staff for example). In substance, case law held that the employer could not simply base its decision to terminate the employment contract on such provisions but is also required to show that such provisions are based on legitimate reasons such as employment policies, labour market objectives or safety reasons. However, the Supreme Court has validated the Labour code provisions allowing employers to terminate employees at the age of 70. In doing so, the Supreme Court judges considered that such provisions were generally justified by legitimate reasons (i.e. the sharing of the labour market) and that the employer was therefore not required to demonstrate the existence of such reasons in each particular situation. Nevertheless, and aside from this particular piece of legislation, it is still highly recommended for employers to be able to provide strong reasons for their decision pursuant to the above criteria when such decision is based on an employee’s age.
