This article summarizes the case law of the Court of Cassation in matters of sexual harassment.
Characterization of sexual harassment (harcèlement sexuel), rules of evidence in the matter or consequences of its denunciation, the Court of Cassation had the opportunity in 2019/2020 to specify the outline of sexual harassment.
1) The acquittal for lack of intentional element of sexual harassment by the criminal judge does not necessarily prevent the civil judge from admitting sexual harassment
Cass. soc., March 25, 2020, n ° 18-23682 (https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000041810357&fastReqId=846628714&fastPos=1)
In the decision of March 25th, 2020 (n ° 18-23682), the facts mentioned were as follows: an employee, employed by the company as dental assistance, was hired on July 2nd, 2012 and dismissed for serious misconduct on October 25th, 2013.
Believing that she was the victim of sexual harassment, she seized the industrial tribunal on October 12nd, 2015, the final decision of the correctional court acquitting the employer being pronounced on July 28th, 2016.
1.1. The authority of res judicata in relation to the civil judge
When a correctional decision pronounces an acquittal because the materiality of the acts of sexual harassment and the guilt of that or which to which they are imputed are not established, the civil judge can not hold the existence of these facts.
In this decision, the Court of Cassation thus affirms that “the final decisions of the criminal courts ruling on the merits on public action have absolute civil authority, with regard to all, as regards what has necessarily been judged as the existence of the fact complained of, its qualification and the guilt or innocence of those to whom the fact is attributed ”.
1.2. A different solution when the release relates only to the intentional element of sexual harassment
The criminalization of sexual harassment (article 222-33 of the penal code) is significantly different from sexual harassment at work (articles L. 1153-1 et seq. Of the labor code).
In order for sexual harassment to be established in criminal law, it presupposes the existence of an intentional element.
Conversely, in labor law, the intentional element is not necessary for the harassment to be constituted.
Thus, the acquittal decision based solely on the want of an intentional element of sexual harassment does not prevent the characterization of sexual harassment in labor law.
It is in this sense that the social chamber decided in the present case, the acquittal decision being based on the sole want of an intentional element.
However, "the characterization of acts of sexual harassment in labor law, as defined in article L. 1153-1, 1 °, of the labor code, does not presuppose the existence of an intentional element".
Thus, the employer released from the facts of sexual harassment before the criminal judge, the employee can still be considered as a victim of sexual harassment before the civil judge.
2) No sexual harassment in case of an ambiguous attitude of an employee
Cass. soc., September 25, 2019, n ° 17-31171 (https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000039188588)
Article L. 1153-1 of the labor code defines sexual harassment as "consisting of remarks or behavior with repeated sexual overtones which either attack his dignity because of their degrading or humiliating character, or create against him intimidating, hostile or offensive ”.
The Court of Cassation replied in this decision to the question whether the sending of SMS messages of a pornographic nature repeatedly by a manager to his subordinate justified dismissal for serious misconduct and constituted acts of sexual harassment (see also Harassment by pornographic sms at work: the ambiguity of the subordinate disqualifies sexual harassment, https://www.village-justice.com/articles/harcelement-par-sms-porno-travail-ambiguite-subordonnee-disqualifie-harcelement,32807.html)
2.1. The impact of an employee's ambiguous attitude on the characterization of sexual harassment
In a decision of September 25, 2019 (n ° 17-31171), the Court of Cassation ruled on the case of an employee claiming to have been the victim of sexual harassment by raising to reject her request that she “had responded to the SMS of the employee, without it being known which of them had taken the initiative to address the first message nor that it was demonstrated that the latter had been asked to stop all sending ”.
In addition, the Court of Cassation mentions the fact that the employee had "adopted a very familiar seductive attitude towards the employee."
The cassation judges approved the argument of the court of appeal "which highlighted the absence of any serious pressure or any intimidating, hostile or offensive situation against the employee".
She thus rightly deduced that "the ambiguous attitude of the latter who had thus voluntarily participated in a game of reciprocal seduction precluded that the acts alleged against the employee could be qualified as sexual harassment".
Sexual harassment had already been ruled out when the facts "were part of a relationship of mutual familiarity with the person complaining about" (Cass. Soc., July 10, 2013, n ° 12-11787: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000027710583&fastReqId=918142539&fastPos=1).
Conversely, in a decision of February 20, 2020, the Court of Appeal of Orleans could consider that “the only single established fact, that Mrs. AC answered on the color of her panties at the request of her colleague, cannot suffice to characterize an ambiguous attitude of the latter, who would thus have voluntarily participated in a game of reciprocal seduction, excluding that the acts alleged against her colleague could be qualified as sexual harassment ”(Court of Appeal of Orleans, ch. social ch. des Prud'hommes, 20 February 2020, n ° 17/02208).
In this case, sexual harassment was established, the ambiguous attitude was not characterized.
2.2. The non-characterization of sexual harassment is not an obstacle to the dismissal of the employee
Sexual harassment not established according to the judges, does not prevent the employer from notifying the disciplinary dismissal of the employee.
The Court of Cassation thus accepted the dismissal of the employee on the grounds that he had "from his professional telephone, repeatedly and for two years, addressed to an employee whom he had known at his workplace and of whom he was the hierarchical superior, SMS with inappropriate and pornographic content, thus adopting a behavior making him lose all authority and all credibility in the exercise of his management function and therefore incompatible with his functions ”.
The High Court thus affirms that "these facts were connected with the life of the company and could justify a disciplinary dismissal".
Nevertheless, the Court of Cassation considers that the facts "did not constitute a serious fault making it impossible to keep the employee in the business" and that the Court of Appeal rightly "decided that these facts constituted a real cause and serious dismissal ”.
Thus, the employee's behavior prevents sexual harassment from being characterized but does not prevent the employee from being dismissed, if it is not for serious misconduct, but for a real and serious cause.
3) Denunciation of acts of sexual harassment: criminal irresponsibility for defamation if the recipient of the denunciation is approved
Cass. crim., 26 November 2019, n ° 19-80360 (https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000039465667&fastReqId=522801795&fastPos=1)
Article L. 1153-2 of the Labor Code prohibits the sanctioning of an employee, a person in training or training, or a candidate, in any way whatsoever, for "having suffered or refused to suffer acts of sexual harassment as defined in article L. 1153-1 ”.
Reporting of such facts is regulated by law and strictly framed
The Court of Cassation was able to rule on the question on November 26th, 2019 (n ° 19-80360) (see in this sense Employees, managers, executives - Denunciation of harassment: be careful not to defame, https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-denonciation-harcelement-attention-pas,33133.html..)
In this case, the employee of an association had sent an email from her electronic mail to her husband, the director general of the association, the labor inspector, the spiritual director of the association and of an establishment. higher education as well as the son of his employer.
This email, entitled “sexual assault, sexual and moral harassment”, implicated his employer who thus acted in court on the basis of public defamation against an individual.
In this decision, the criminal chamber thus recalls that a “person prosecuted on the ground of defamation after having reported acts of sexual or moral harassment of which he considers himself victim can be relieved of his criminal responsibility (…) when he has denounced these actions, under the conditions provided for in Articles L. 1152-2, L. 1153-3 and L. 4131-1, paragraph 1, of the Labor Code ”.
The judges specified that “to benefit from this cause of criminal irresponsibility, the person prosecuted on this count must have reserved the report of such acts to his employer or to bodies responsible for ensuring the application of the provisions of the labor code and no, as in this case, having also sent it to people who do not have one of these qualities ”.
4) Letter of notification of dismissal: serious misconduct resulting from sexual harassment is a sufficiently precise reason
Cass. soc., May 15, 2019, n ° 18-12666 (https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000038508151&fastReqId=606634741&fastPos=18)
Article L. 1232-6 of the Labor Code places the obligation on the employer wishing to dismiss an employee to specify in the notification letter the statement of the reason (s) invoked.
In a decision of May 15th, 2019 (No. 18-12666), the Court of Cassation ruled on the case of an employee dismissed for serious misconduct after having made a written confession concerning sexual harassment committed against another female employee 'company.
The Court of Cassation affirms that the letter of dismissal stating “the written confessions of the employee concerning the sexual harassment committed towards another precisely named employee” and qualifying “this fact of serious fault (…) constituted a precise and materially verifiable reason, which could be clarified and discussed before the trial judges ”.
5) Failure to comply with the employer's safety obligation: basis for specific compensation in the event of separate losses
Court of Appeal of Versailles, ch. March 11th, 2020, RG 05/17635
An employee who is the victim of moral or sexual harassment can obtain damages on this basis but also, cumulatively, on that of the breach of the employer's security obligation (or even as discrimination if necessary) if it justifies separate damages.
Furthermore, even in the event that the harassment is not accepted by the judges, it is possible that she will be compensated on the basis of this breach.
In the decision of March 5, 2020, an employee, hired by the company Chartrainsport (working under the name Intersport) as cashier, had filed a complaint for sexual harassment by her employer with the public prosecutor who classified the case was taken for insufficiently characterized offense.
Her employer notified her of her dismissal on November 28th, 2014 and she appealed to the Labor Court on March 11th, 2016.
She criticized her employer, in addition to sexual harassment with a sexual connotation, breaches of the obligation of security of result.
On the issue of moral or sexual harassment, the Court of Appeal of Versailles affirms that “the materiality of precise and concordant facts which, taken as a whole, would suggest the existence of moral or sexual harassment is not demonstrated "
However, she added "if the absence of moral or sexual harassment is not such as to exclude, in the presence of moral suffering related to work, any failure by the employer to fulfill his security obligation".
In fact, for the employer to have satisfied his obligation, he must justify on the one hand, the fact that he has put in place the preventive measures necessary to ensure the safety and protection of the physical and mental health of workers, such as information and prevention actions.
On the other hand, he must justify the fact that he reacted immediately and took the immediate measures necessary to put an end to the danger as soon as he was informed of it.
6) The burden of proof (charge de la preuve) alleged in matters of psychological and sexual harassment
Chambéry Court of Appeal, ch. Social, February 27, 2020, No. 19/00089; Riom Court of Appeal, social chamber, May 26, 2020, RG n ° 19/00744)
In matters of harassment, moral or sexual, the burden of proof is reduced.
First, the person believing themselves to be the victim of such acts must "present facts suggesting the existence of harassment".
Secondly, it will be up to the defendant to "prove that these actions do not constitute such harassment and that its decision is justified by objective elements unrelated to any harassment" (article L. 1154-1 of the code du job).
For example, the employer invoking the fact that physical proximity was a "game" between him and his employee while the bond of subordination between them implied a state of pressure suffered by the employee "thus fails to demonstrate that the facts materially established by [the employee] are justified by objective elements foreign to any harassment. Sexual harassment is established ”(Court of Appeal of Chambéry, ch. Sociale, February 27th, 2020, n ° 19/00089).
The Riom Court of Appeal on May 26th, 2020 stated that for facts relating to inappropriate gestures, words and looks, the fact that the employer mentioned “the concept of humor, without demonstrating that the actions of the [employee] do not constitute sexual harassment and that the above-mentioned behaviors and remarks of the employee are justified by objective elements unrelated to any harassment "was not enough to contest the existence of the said harassment (Riom Court of Appeal , social chamber, May 26th, 2020, RG n ° 19/00744).
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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