The matter of racial discrimination is a regular source of concern in France, and the issue of protection against such discrimination is as important as ever.
In this respect, employee 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, including employees’ origin, their actual or assumed membership of an ethnic group, a nation or a race and their name. Discrimination on the basis of an employee’s colour or nationality would clearly fall within such general prohibition. It would also be possible to characterize such discrimination in cases of difference of treatment based on an employee’s accent or language.
In this legal framework, any employer who 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 disregard 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.
However, as for any other type of discrimination, it is still possible to implement 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.
In practice, such type of discrimination mainly occurs at the time of recruitment and involves employers who voluntarily decide to exclude candidates in consideration of their origin. In this respect, one of the main lessons which can be drawn from case law is that any employer will be well-advised to determine prior to the recruitment all of the objective elements (such as diploma, previous experience, etc.) required for the position so as to be able to invoke them as a legitimate ground for excluding a candidate. The decisions of the French courts have held that if the employer wishes to justify the exclusion of a candidate on a specific ground, it may do so only if such ground formed part of the qualifications expressed during the recruitment process. Otherwise, the employer faces the risk that the recruitment decision could be viewed as discriminatory. This is all the more an issue since case law considers that discrimination may occur even if the candidate has actually been recruited (if for example the employee proves that there was a delay in the recruitment process on account of his/her origin).
