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Discrimination aims to disadvantage a person for reasons prohibited by law. For example origin, gender, age, sexual orientation, political, philosophical or religious beliefs. Discrimination based on one of these grounds is punishable by criminal law. As a victim, you can ask the courts to sentence the perpetrator of the discrimination to a criminal sanction and to pay you damages.

Any decision by the employer (hiring, promotion, sanctions, transfer, dismissal, training, etc.) must be taken based on professional criteria and not on personal considerations, based on elements external to work (sex, religion, etc.). physical appearance, nationality, sexual orientation). Failing this, civil and criminal sanctions are incurred.

Employees who are victims or witnesses of discrimination also can appeal before the Conseil des Prud’hommes, the French Employment Court.

The objective of such action is to annul the measure or decision based on a discriminatory reason and/or to seek compensation for the damage suffered.

It is up to the person being discriminated against to present to the Court the factual elements suggesting the existence of such discrimination, direct or indirect.

The employer will then have to present elements attesting that its decision is justified by objective elements, unrelated to any discrimination.

In a judgment dated 22 September 2021, the Highest French Court, the “Cour de Cassation” considered that the existence, in matters of discrimination, of a specific proof mechanism could not prevent the application, meaning that if there is a legitimate reason to preserve or establish before any trial proof of facts on which the solution of a dispute could depend, legally admissible investigative measures may be ordered at the request of any interested party, upon request or in summary proceedings. 

In this case, an employee holding union and representative offices, considering himself the victim of discrimination, particularly by union discrimination, had referred the matter to the Conseil des Prud’hommes to obtain the communication by his employer of a certain amount of information enabling him to make a useful comparison of his situation with that of his work colleagues. His request was rejected, wrongly according to the Court of Cassation. 

This position has recently been confirmed again by the Highest French Court, the Cour de Cassation in a ruling dated 8 March 2021 where the judge could order the communication of pay slips at the request of an employee wishing to demonstrate the existence of pay inequality between her and certain of her colleagues men.

Consequently, the fact that the victim only pursued the objective of demonstrating the existence of discriminatory action or injunction does not exclude, in the event of harm caused to this person, liability. of the employer. 

The action for compensation for damage resulting from discrimination will need to be triggered within 5 (FIVE) years from the disclosure of the discrimination. This deadline is not subject to conventional adjustment.

If the discrimination is recognized, the damages must compensate the harm resulting from this discrimination, for its entire duration.

In the event of the nullity of the dismissal pronounced by the judge, and if the employee does not request the continuation of his employment contract or if his reinstatement is impossible, the judge grants him compensation, at the expense of the employer, which cannot be lower than the salaries of the last six months.

In this case, the judge is not bound by the scale of compensation for dismissal without real and serious cause.

In addition, this compensation is due without prejudice to the payment, where applicable, of legal, conventional or contractual severance pay. It is exempt from income tax and, up to twice the value of the annual social security ceiling, from social security contributions.

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