The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

However, on 25 September 2019, the French Supreme Court (Cour de Cassation) did not acknowledge that a line manager, who had regularly sent, over a significant period of time (several consecutive years), messages with inappropriate and pornographic content to one of his subordinates, via his company smartphone, committed acts falling within the scope of sexual harassment.

The company had been informed of the facts by a letter sent to its management by a third party. On the basis of these, the employer dismissed the manager for serious misconduct (faute grave), qualifying his behavior towards his subordinate as sexual harassment.

The manager subsequently challenged his dismissal before the employment court. To support his claim, he indicated that a seductive relationship had developed between him and his subordinate, but that it was she who had initiated the SMS exchanges, and that she had adopted a provocative attitude towards him at work. He denied any form of pressure on his subordinate, and claimed that the relationship he had had with his subordinate was of a private nature and could not justify his dismissal.

The facts in this case were indisputable. Ample evidence of the existence of the exchanges, supported by testimony, proved the existence of the messages exchanged.

However, the Court of Appeal, and subsequently the French Supreme Court, were sensitive to the manager’s arguments. The judges took into account the subordinate’s attitude in order to refrain from qualifying the exchanges as falling within the offence of sexual harassment. The court explained its reasoning by pointing out that the subordinate had replied to the messages of her line manager, maintaining the correspondence with him to some extent, and never asking him to stop sending messages. Several employees also certified that she adopted “a very familiar attitude of seduction” towards him.

The judges therefore ruled out any serious pressure or any intimidating, hostile or offensive situation towards the subordinate who, according to them, had voluntarily participated in a game of mutual seduction. This meant that the acts alleged against the manager could not be qualified as sexual harassment.

By such decision, the Supreme Court recalled that harassment must be “suffered”. The judges of the court of appeal pointed out that the company did not provide any evidence that the subordinate had asked her manager to end such seduction game.

Even though in this case the court ruled out the existence of sexual harassment, the employee’s dismissal was still considered as valid.

French employment law makes an important distinction between “real and serious cause”, which justifies the dismissal of an employee but entitles the employee to a termination indemnity and certain other statutory payments, and dismissal for “serious misconduct”, which depending on the gravity of the alleged misconduct, justifies not only the dismissal in the first place but also the absence of some of these payments (in particular the termination indemnity and the notice period entitlement). In this case, although due to the lack of a finding of sexual harassment the court found that serious misconduct did not exist, the court still found that the behavior of the employee justified his dismissal for real and serious cause. The Court of appeal held, and the French Supreme Court affirmed, that the actions of the manager, who had a very senior role in a company employing more than one hundred employees, had adopted a course of behavior that caused him to lose all authority and credibility in the exercise of his management function and was therefore incompatible with his responsibilities.

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