Actance Tribune

On December 6, 2023, the French Parliament adopted a bill aimed at intensifying the fight against discrimination via the use of individual and statistical tests. 

This text plans to systematise the use of individual and statistical tests to reveal whether or not companies and public employers have discriminatory practices.

• Creation of a Government service

The text proposes the creation of a service whose mission will be to help people to complete individual tests to check if they are victims of discrimination. Within this service, a special committee would be responsible for carrying out statistical tests on companies, according to a work program defined by the Government. The names of companies whose discriminatory behaviour has been confirmed could be published. 

• Procedure in case of alleged discriminatory practices

When the result of a test suggests that there are discriminatory practices, the service in charge of these tests must inform the employer concerned as well as the local competent administrative authority and send them the results of the test.

In this case, the company must begin “negotiations on measures aimed at preventing or correcting discrimination, in order to conclude an agreement within six months of the transmission of the test results ”. Failing an agreement, the employer must establish, within the same time frame, a plan of action with the same goal, following consultation with the social and economic committee.

Failure to comply with these measures would result in an administrative fine. To date, the administrative fine is up to 1% of remuneration and earnings subject to contributions paid during the calendar year preceding the expiration of the 6-month time period granted the employer to conclude an agreement or to implement an action plan.

The adoption of this proposal is part of the government’s anti-discrimination policy.

Note that discrimination of any sort is prohibited in France. This means unequal or unfavourable treatment of a person due to personal characteristics, such as: origin, sex, morals, sexual orientation, age, family situation or pregnancy, vulnerable economic situation, political opinions, trade union or mutualist activities, religious beliefs, physical appearance, last name, health, etc.

It can be direct (a person is treated less favourably than another person due to criteria prohibited by law) or indirect (a seemingly neutral measure leads to the same result as direct discrimination).

In France, discrimination is prohibited both by the French Penal Code which provides for sanctions of up to 5 years of imprisonment and a fine of €75,000, as well as by the French Labour Code which provides for a sanction of one year imprisonment and a fine of €3,750 when the discrimination takes place in a professional context.

Precaution to note:

We recommend that our clients take preventive measures to ensure equal treatment among employees and to train staff, particularly those managing human resources and recruitment, about the risks linked to discrimination.

The appointment of a discrimination adviser or the establishment of an internal reporting procedure which would allow the employer to react quickly and appropriately should any risky situations arise could also constitute preventive solutions.