What sanctions for workplace discrimination?

Published on March 4, 2021

Business Law

Mentioning the sanctions targeting prohibited discriminatory measures in the company also serves to remind that employees may be subject to different treatment provided it is justified by professional reasons.

The legislator has established an exhaustive list of criteria under which an employee cannot be excluded from a recruitment process, sanctioned, dismissed, or disadvantaged, particularly in terms of salary or career progression(1).

Among the discriminatory grounds, we notably find origin, age, or belonging to an ethnic group, nation, or race, but also the exercise of the right to strike, the right to alert, or sexual orientation.

Be careful, however, not to confuse discrimination, which is punished by the labor code, with a difference in treatment that can be accepted when it is based on professional reasons, such as performance, seniority, etc. Fortunately, not all employees must be treated the same way.

Nullity as an immediate sanction for a discriminatory measure

Making a decision in matters of personnel management, recruitment, dismissal, or disciplinary sanction based on one of the criteria prohibited by the labor code irrevocably renders the act taken against the employee null and void.

Nullity leads to the restoration of the situation as it was before the decision was made. An employee dismissed due to her pregnancy must, for example, be reinstated in the company if she requests it(2).

The employer may also be required to compensate for the loss related to the absence of remuneration between the dismissal and reinstatement, or – in case of refusal of reinstatement – to indemnify the employee for the loss of employment.

The second penalty may be criminal

The employee has three years to initiate criminal proceedings against the company and its representative after the commission of the facts.

Articles 225-2 and 222-4 of the Penal Code govern the criminal penalties incurred by perpetrators of discrimination: an individual employer risks up to 3 years' imprisonment and a fine of 45,000 euros, while a corporate employer faces a fine of up to 225,000 euros (these penalties can go as far as the definitive closure or for a maximum of 5 years of the incriminated establishments).

Numerous additional penalties may also be imposed against the employer.

The employer also faces a penalty of up to one year's imprisonment and 3,750 euros in the event of gender discrimination, and may also be ordered to pay 1,500 € to an employee for violating the principle of equal pay, etc. (3)

To ensure that companies are not hindered in their operations and can treat their employees differently based on their performance and the quality of their intervention, it is therefore highly recommended that they set up remuneration grids, link the payment of bonuses to the achievement of set and adopted objectives, or properly justify a sensitive decision in writing.

Such a prevention policy can protect them from the poison of suspicion that often legitimately affects employees who are victims of discriminatory decisions.