The matter of discrimination based on an employee’s sexual orientation is becoming more and more topical as the claims of the homosexual community give rise to a greater public awareness of the protection of each individual’s sexual orientation.
In this respect, employees’ protection against such type of discrimination 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 prohibited grounds such as the employee’s sexual orientation.
An employer which does not comply with this prohibition 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 violation of such principle, in addition to possible damages as compensation for any loss suffered as a result of the discrimination. The employee victim of a discriminatory measure may also be entitled to claim constructive dismissal with the same financial consequences as those of an unfair dismissal.
In practice, there have been very few cases decided concerning employers’ infringement of the prohibition of discrimination based on employees’ sexual orientation. Case law has focused mainly on the differences of treatment between married couples and couples who had entered into a civil partnership (“PACS”). In this respect, provisions of sector-wide collective bargaining agreement (“CBA”) traditionally reserved a certain number of benefits to married couples only without taking into consideration the situation of couples who concluded a civil partnership. This situation had raised issues in terms of discrimination since homosexuals were not allowed to marry until fairly recently and therefore were not entitled to such benefits. The Supreme Court, after having referred to the European Court of Justice, ruled that such situation constituted a direct discrimination on the basis that heterosexual and homosexual couples were placed in a comparable situation in the light of the benefits in question. Therefore, the provisions of CBAs reserving specific benefits to married couples are deemed also to apply to couples who have signed a PACS. French law has also changed as homosexuals are now authorised to marry.
Finally, and as an additional indicator that the topic of sexual orientation’s discrimination is becoming a recurring matter in the workplace, the legislator has introduced a new ground of discrimination, namely the employee’s sexual identity, in order to reinforce the prohibition of any difference of treatment at the detriment of transsexual or transgender individuals.