In its highly publicized judgment of October 15, 2019, the Nantes Labor Tribunal (Conseil de prud’hommes) ordered GENERALI VIE to pay an employee compensation of € 161,000 for discrimination on the grounds of sex.
1) The qualification and proof of discrimination
Let us recall, first of all, with regard to the proof of discrimination that the employee is not required to establish proof of his discrimination, but to present facts suggesting the existence of discrimination. In view of these elements, it is then up to the employer to demonstrate that his decision is justified by objective elements unrelated to any discrimination (article L.1134-1 of the Labor Code)
Then, the existence of discrimination on career development can notably materialize by an abnormal and unjustified blocking of the evolution over the years of the elements of remuneration, but also of the possible promotions to which the employee could claim based on his skills and experience.
It should also be noted that discrimination can result from an accumulation of small decisions which may at first seem insignificant but which, taken as a whole, reveal the discrimination.
Let us quote; the exclusion of a bonus, the refusal to grant a day of telework, the absence of organization of the annual interview, the organization of the weekly team meeting precisely on the employee's telework day, the rejection internal applications, refusal to provide training, etc.
However, it should be remembered that no right to a salary increase or promotion is enshrined in law or in case law.
In these circumstances, the only way to establish that the cause of this blockage is based on union activities or on one of the criteria prohibited by article L.1132-1 of the Labor Code, is to demonstrate that a certain a number of other employees, however placed in a comparable situation, have themselves experienced a more favorable development than that of the discriminated employee.
The question that arises is therefore to establish a panel of relevant employees in order to demonstrate by comparison that employees who do not have the characteristics of a prohibited reason have experienced better development, or at least have not been subject to arbitrary decisions related to the prohibited ground.
To read all the article, please click on the link below
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris
Mathilde Mermet-Guyennet avocat
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083