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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - France (RATIFICATION: 1981)

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Observation

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The Committee notes the observations of the French Confederation of Management – General Confederation of Professional and Managerial Employees (CFE-CGC), received by the Office on 7 November 2022.

Article 1 of the Convention. Protection against discrimination and sexual harassment. Overseas departments. The Committee once again notes with regret that, despite its reiterated requests, the Government has still not provided information on the application of the Convention in French Guyana and Réunion. The Committee therefore requests the Government to provide specific information on: (i) any measures adopted by the authorities, employers and labour inspectors with a view to preventing and bringing an end to discrimination in employment and occupation and sexual harassment at work; and (ii) any cases of discrimination and sexual harassment dealt with by the labour inspection services and the courts in the overseas departments.

Article 1(1)(a). Discrimination on the basis of sex. Discrimination on the basis of pregnancy. The Committee notes the information contained in the report on the activities of the Defender of Rights for 2022, according to which: (1) too many complaints are still being made by women whose contracts have been interrupted (at the end of the trial period, the non-renewal of fixed-term contracts) because they were pregnant and who are regularly accused of a “lack of loyalty” when they do not report their pregnancy at a very early stage, even though there is nothing requiring them to do so; and (2) despite a protective legislative framework and well-established case law, cases of discrimination in employment on the basis of pregnancy are still frequent and are at the origins of many of the cases taken up by the Defender of Rights (page 51). In his regard, the Committee considers that, while the termination of fixed-term contracts at the end of the specified period is in their very nature, any difference in their renewal or the initial determination of their duration on the sole basis of the pregnancy of the women worker, whether real or potential, is discriminatory. In view of these findings, the Committee requests the Government to provide information on the measures adopted or envisaged to: (i) combat any form of discrimination on the basis of pregnancy, both at the level of recruitment and promotion, and conditions of work in general; and (ii) remind all persons concerned of the legal provisions applicable to this type of discrimination.

Prohibition of sexist behaviour. The Committee requests the Government to provide information on: (i) the manner in which the labour inspection services and the courts deal with cases of sexist behaviour at the workplace in the public and private sectors; and (ii) the implementation of the Plan of Action and Mobilization against Sexism launched in September 2016.

Sexual harassment. Private sector. The Committee welcomes the amendment of the definition of sexual harassment contained in section L.1153-1 of the Labour Code as a result of the adoption of Act No. 2021-1018 of 2 August 2021, which adds to “repeated words or behaviour with a sexual connotation” the phrase “repeated words or behaviour with a sexist connotation”, which also covers words or behaviour by several persons, whether or not they are concerted, even if each person only engages in such behaviour once. It also notes that the protection of victims and witnesses (section L.1153-2 of the Labour Code) has been significantly improved by Act No, 2022-401 of 21 March 2022 to improve the protection of whistleblowers. The Committee requests the Government to take measures to: (i) disseminate these new provisions of the Labour Code; and (ii) encourage and control the implementation of the obligations of employers to take all the necessary measures to prevent, bring an end to and punish acts of sexual harassment. It also requests the Government to consider the possibility of removing the element of repetition in the definition of sexual harassment in section L.1153-1(1) of the Labour Code when it is committed by a single person.

Discrimination on the basis of race, colour and national extraction. Travellers. The Committee recalls the findings of a survey carried out in 2017 as a follow-up to a report of the Court of Accounts according to which improvements in the living conditions of travellers were slow and uneven and the school attendance of their children was better supervised but still suffered from persistent shortcomings. In this regard, it notes the adoption of the French Strategy 2020–30, in response to the Recommendation of the Council of the European Union of 12 March 2021 on Roma equality, inclusion and participation, which also concerns travellers (January 2022). The Committee requests the Government to provide information on the specific measures adopted since 2017, particularly within the context of the Strategy 2020-30, to promote: (i) equality of opportunity and treatment for travellers in relation to access to all levels of education and to employment, including measures intended to improve skills levels, recognize and validate vocational skills and enable their registration with the public employment service; and (ii) respect and tolerance, and effective action to combat the discrimination and stigmatization of travellers.

Discrimination on the basis of religion. The Committee requests the government to provide information on the measures adopted for the implementation of the National Plan to combat racism, anti-semitism and discrimination on the basis of origin 2023-26 in the specific field of employment. It reiterates its request for information on any evaluation of Act No. 2010-1192 of 11 October 2010 prohibiting the covering of faces in public places in relation to employment, taking into account its possible effects on the employment of Muslim women.

Articles 1(1)(a) and 2. Discrimination on the basis of sex. Sexual harassment. Equality between women and men. Public service. The Committee notes the adoption on 9 March 2018 of a circular on action to combat sexual and sexist violence in the public service and the Decree of 13 March 2020 requiring the establishment of reporting procedures (for violence, discrimination, harassment and sexist behaviour). It also notes the adoption: (1) in March 2023, of the Inter-Ministerial Plan for equality between women and men 2023-27, which provides for the development of occupational equality measures in the public service: the definition of the equality index, the negotiation of a new agreement, the generalized adoption of an objective of vocational equality in the annual evaluation of the directors of State services, the reinforcement of the provisions on balanced appointments, the continuation of testing, etc.; and (2) Act No. 2023-623 of 19 July 2023 to reinforce the access of women to positions of responsibility in the public service. The Committee requests the Government to provide information on the specific measures adopted to promote equality between women and men in the public service and the results achieved, within the context of the implementation of the Inter-Ministerial Plan 2023-27 and the application of the Act of 19 July 2023. It requests the Government to provide information on the specific measures taken to prevent and combat sexual and sexist violence in the public service.

Indirect discrimination on the basis of sex. Inequalities of treatment between women and men domestic workers and other categories of workers. The Committee notes that the CFE-CGC places emphasis in its observations on the existence of inequalities between women and men domestic workers and other categories of workers covered by the Labour Code, particularly in relation to statutory termination benefits and the regulation of working time (“responsible working hours” being assimilated to on-call hours rather than hours of work). The union also observes that: (1) the principle of a limitative list of common law provisions, as set out in section L.7221-2 of the Labour Code, which are applicable to domestic workers contributes to making their situation more precarious; and (2) the specific characteristics of domestic work (part-time work, several workplaces with travelling time, etc.) are not taken into account. The Committee observes that the CFE-CGC emphasizes that the majority of persons working in this branch are women. The Committee therefore considers that these differences of treatment can constitute indirect discrimination on the basis of sex. The Committee requests the Government to provide any information that it considers relevant in response to the observations of the CFE-CGC. It also requests the Government to indicate the manner in which it intends to remedy the inequalities of treatment affecting women and men domestic workers in relation to other workers and to combat indirect forms of discrimination against women.

Article 2. Equality of opportunity and treatment in relation to education, vocational training and employment. Persons with disabilities. The Committee notes the adoption in 2019 of the Strategy for the Employment of Persons with Disabilities and the establishment of committees responsible for its implementation. It also notes the concluding observations of the United Nations Committee on the Rights of Persons with Disabilities, in which it noted with concern: (1) the high levels of unemployment and low-wage employment among persons with disabilities, and their segregation in protected employment that combines accommodation and work; (2) the high rate of unemployment among women with disabilities, the high rate of their employment in part-time jobs and in precarious conditions, the hurdles they face developing career paths and the challenges they encounter reconciling work and family life; (3) the low level of professional qualifications among persons with disabilities; and (4) the lack of awareness among employers and their reluctance to provide reasonable accommodation (CRPD/C/FRA/CO/1, 4 October 2021, paragraph 54). The Committee requests the Government to provide information on: (i) the measures adopted, in collaboration with the social partners, to promote and ensure equality of opportunity and treatment for persons with disabilities in employment and occupation within the framework of the 2019 Strategy or in other contexts, including any measures adopted to improve the access of young persons with disabilities to vocational education and training; and (ii) the results achieved in terms of integration at school and in employment and occupation.

Enforcement. Institution to combat discrimination and promote equality. The Committee notes that the report on the activities of the Defender of Rights indicates that the institution is still too structurally under-resourced to discharge more effectively all of its missions and deal with complaints, which are increasing by around 15 per cent each year. However, the Committee notes with interest that the establishment in February 2021 of the platform antidiscrimination.fr, the management of which is entrusted to the Defender of Rights, has resulted in a very considerable increase in the number of calls to the institution in relation to discrimination, and as a consequence in better access to the law by victims. Emphasizing once again the fundamental role played by the Defender of Rights in this regard, the Committee trusts that the Government will continue to take the necessary measures to ensure that the institution has available the necessary resources and personnel for its mission of combating discrimination and promoting equality so that it can discharge its responsibilities not only to deal with complaints, but also to engage in awareness-raising, training, research and analysis, and to make recommendations and issue opinions to public authorities.

Labour inspection, The Committee notes the detailed information provided by the Government on the work of the labour inspection services. In view of the continuing increase in complaints of discrimination lodged with the Defender of Rights over the years, the Committee requests the Government to provide information on any measures taken to provide labour inspectors with better resources and tools to enable them to detect and bring an end to all types of discrimination, in both recruitment and employment.

The courts. The Committee notes that, in her contribution to the examination of the situation in France by the United Nations Committee on the Elimination of Racial Discrimination (CERD) (October 2022), the Defender of Rights referred to: (1) the very high rate of failure to lodge complaints and the difficult, rarely used and not very dissuasive procedure; (2) the very disappointing outcomes of the anti-discrimination sections of courts (particularly due to the onerous requirements for proof of the intention to discriminate in criminal proceedings); (3) the very low level of criminal convictions handed down; and (4) the low financial impact of civil penalties. In this regard, the Defender of Rights recommends: (1) amending sections 225-1 et seq. of the Penal Code to provide for a means of adapting the burden of proof in discrimination cases; (2) allowing civil courts to order analyses and compulsory remedial measures against convicted organizations in individual disputes relating to structural discrimination; and (3) providing for the possibility of awarding punitive civil damages in cases of direct discrimination or discriminatory harassment. With regard to group actions in cases of discrimination as envisaged by Act No. 2016-1547 of 18 November 2016, the Committee notes the emphasis placed by the Defender of Rights on the absence of a specific procedural framework to deal with such new disputes, which are both burdensome and complex, as well as the problems of financing such actions. The Committee requests the Government to provide information on: (i) all cases of discrimination in employment and occupation (the grounds cited, penalties imposed and compensation awarded) dealt with by the courts; (ii) any action taken on the recommendations of the Defender of Rights in relation to dispute procedures in cases of discrimination; and (iii) any evaluation undertaken of the effectiveness of complaints in cases of discrimination and the access of victims to the law, including through group actions.

Statistics. Noting that the Defender of Rights, in her 2022 contribution to the CERD, recommends the creation of a discrimination observatory to develop public statistics on discrimination and to serve as a real instrument of guidance and action for the promotion of equality policies, the Committee requests the Government to provide information on: (i) any action taken on this recommendation; and (i) the manner in which the impact of the measures taken and the progress achieved is evaluated.