Discrimination based on an employee’s gender is a sensitive topic in France as, in spite of the numerous laws voted with the intention of tackling this issue, the national institute of statistics and information about economy recently disclosed that the global gap in average remuneration between men and women was still approximately 19% in 2013, although on the basis of equivalent positions and conditions (business sector, age, employment category, working conditions), the gap was around 10%. The good news however, is that the gap is narrowing each year.
Employees’ protection against discrimination based on gender 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 gender. This principle does not prohibit measures intended to provide protection for pregnant employees.
An employer that does not comply with such 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. An employee who is a victim of a discriminatory measure may also be entitled to claim constructive dismissal with the same financial consequences as those of an unfair dismissal, which can carry substantial damages.
In addition, the prohibition of discrimination based on gender is closely linked to the general requirement for all employers to ensure equal remuneration between men and women occupying a similar employment or an employment of a similar value. This principle has been long-lasting (it was implemented over 30 years ago), and failure to comply has been punished by fines and by the nullity of any provisions contravening such principle.
The French government has made it clear that it wishes to make this a recurrent matter, as gender equality of remuneration is one of the topics which must be discussed with trade unions at the company level in the context of the annual mandatory negotiation on salaries. In addition, depending on their headcount, companies are required to adopt a gender equality plan intended to suppress salary gaps between men and women. A breach of this requirement can trigger financial penalties, as well as the inability of the company to bid for State contracts.