Burden of proof of sexual or moral harassment, office of the judge, characterization or consequences in the matter, the courts had the opportunity in 2020/2021 to specify the outline of sexual and moral harassment.
1) The reduced burden of proof in matters of moral and sexual harassment (harcèlement sexuel)
Chambéry Court of Appeal, ch. social, February 27th, 2020, n ° 19/00089; Riom Court of Appeal, social chamber, May 26th, 2020, RG n ° 19/00744
In matters of moral or sexual harassment, the burden of proof is lightened.
In the first place, the person considering himself the victim of such facts must "present elements of fact suggesting the existence of harassment".
Secondly, it will be for the defendant to "prove that these actions do not constitute such harassment and that its decision is justified by objective factors unrelated to any harassment" (article L. 1154-1 of the French Code of job).
For example, the employer invoking the fact that physical proximity was a “game” between him and his employee while the relationship of subordination between them implied a state of pressure undergone by the employee “thus fails to demonstrate that the materially established facts by [the employee] are justified by objective factors unrelated to any harassment. Sexual harassment is established "(Court of Appeal of Chambéry, social ch., February 27, 2020, n ° 19/00089).
In a judgment of May 26, 2020, the Riom Court of Appeal, for its part, affirmed that for facts relating to inappropriate gestures, remarks and looks, the fact that the employer evokes "the notion of humor , without showing 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 sufficient to dispute the existence of said harassment ( Riom Court of Appeal, social chamber, May 26, 2020, RG n ° 19/00744).
2) The judge's office in matters of harassment
Cass. soc., July 8th 2020, n ° 18-23410, published
In a judgment published in the bulletin of July 8, 2020 (n ° 18-23.410), on the question of the judge's control, the Court of Cassation recalled that “to rule on the existence of sexual harassment, it is up to the judge to examine all the elements presented by the employee, taking into account any medical documents produced, and to assess whether the material facts established, taken as a whole, allow the existence of harassment to be presumed.
If so, it is up to the judge to assess whether the employer proves that the acts alleged do not constitute such harassment and that these decisions are justified by objective factors unrelated to any harassment.
Subject to exercising his office under the foregoing conditions, the judge makes a sovereign assessment of whether the employee establishes facts which make it possible to presume the existence of harassment and if the employer proves that the acts invoked are unrelated to any harassment " .
As a result, disregards this rule of evidence, the Court of Appeal, which held that the elements produced by the employee do not suggest the existence of sexual harassment, without taking into consideration, among the elements invoked by the latter , the warning pronounced against his hierarchical superior for inappropriate behavior towards his subordinate.
3) The discharge for lack of intentional element of sexual harassment by the criminal judge does not necessarily prevent the civil judge from admitting the sexual harassment
Cass. soc., March 25th, 2020, n ° 18-23682
In a judgment published in the bulletin of the social chamber of March 25, 2020, the disputed facts were as follows: an employee, employed by the company as dental assistance, was hired on July 2, 2012 and dismissed for serious misconduct on 25 October 2013.
Believing herself to be a victim of sexual harassment, she filed a complaint with the prudential tribunal on October 12, 2015, with the final judgment of the criminal court relaxing the employer being pronounced on July 28, 2016.
4) Authority of res judicata with regard to the civil judge
When a correctional judgment pronounces an acquittal because the materiality of the facts of sexual harassment and the guilt of the one to whom they are imputed are not established, the civil judge cannot accept the existence of these facts.
In this judgment, the Court of Cassation thus affirms that "the final decisions of the criminal courts ruling on the merits of the public action have absolute civil authority, with regard to all, with regard to what has necessarily been judged as to to the existence of the incriminated fact, its qualification and the guilt or innocence of those to whom the act is imputed ”.
5) 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).
For sexual harassment to be constituted in criminal law, it presupposes the existence of an element of intention.
Conversely, in labor law, the intentional element is not necessary for harassment to be constituted.
Thus, the discharge judgment based on the sole defect of the intentional element of sexual harassment does not preclude the characterization of sexual harassment in labor law.
It is in this sense that the social chamber ruled in this case, the discharge judgment being based on the sole defect 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 assume the existence of an intentional element".
Thus, the employer acquitted of the facts of sexual harassment before the criminal judge, the employee can be considered as a victim of sexual harassment before the civil judge.
6) Breach of the employer's safety obligation: basis for specific compensation in the event of separate losses
Versailles Court of Appeal, ch.11 March 5th, 2020, RG 17/05635
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 safety obligation (or even for discrimination where applicable) if it justifies distinct prejudices.
In addition, 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 judgment of March 5th, 2020, an employee, hired by the company Chartrainsport (working under the Intersport brand) as a cashier, had filed a complaint for sexual harassment by her employer with the public prosecutor who classified the case without follow-up for insufficiently characterized offense.
Her employer notified her of her dismissal on November 28, 2014 and she appealed to the labor court on March 11, 2016.
She criticized her employer, in addition to sexual harassment, for breaches of the obligation of security of result.
On the question of moral or sexual harassment, in a judgment of March 5, 2020, 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 harassment moral or sexual is not demonstrated ”.
However, she adds "if the absence of moral or sexual harassment is not likely to exclude, in the presence of moral suffering in connection with the work, any breach by the employer of its obligation of safety".
In fact, for the employer to have fulfilled his obligation, he must justify, on the one hand, the fact that he has put in place the necessary preventive measures to ensure the safety and protection of the physical and mental health of workers. workers, such as information and prevention actions.
On the other hand, he must justify the fact that he reacted immediately and that he took immediate measures to put an end to the danger as soon as he was informed.
7) Case law where moral or sexual harassment has been found
Paris Court of Appeal, November 4th, 2020, n ° 19/06819 and n ° 19/06824, final
Moral harassment was upheld by the Paris Court of Appeal in two cases in which the reorganization of the cloakroom service at the Bal du Moulin Rouge in which the employees worked had taken place.
To characterize moral harassment, the Court of Appeal noted that the employer's responses to alerts from employees about their distress situation at work as a result "were inappropriate and show that far from trying to find solutions in order to adapt work, limit the rhythm of work and reduce its effects on the health of the staff (...) the company has taken decisions in a direction solely dedicated to customers and of a commercial nature totally neglecting the higher imperative which should have guided it in particular by the absence of follow-up on the arduousness ”.
Added to this was the fact that "the terms of the letters, in particular from the director of human resources in response, were indicative of a contempt displayed in the face of the concerns of employees:" (...) your allegations in this regard have indeed, any other purpose than to constitute an attempt to intimidate us and to serve your case within the framework of the industrial tribunal proceedings that you have initiated against our company ”.
Finally, the Court of Appeal noted a tense atmosphere and dysfunctions without management implementing the mediation measure intended to restore normal communication.
Conseil de prud'hommes de Paris, départage January 14th, 2021, n ° RG F 17/07435, final
The departing judge of the Paris Labor Council upheld the existence of moral harassment for an employee after she had experienced, in particular, serious and repeated insults from a supervisor, an overload of work leading to a warning after the employee denounced it and a refusal by RTT on the grounds of an allegedly missed deadline.
The facts were considered sufficiently serious to prevent the maintenance of the employment contract and to justify taking action by the employee of the termination of her contract at the fault of the employer.
Cass. soc., February 17, 2021, n ° 19-18149, not published
The Court of Cassation held that the employer was guilty of a breach of the safety obligation serious enough to prevent the continuation of the employment contract in the event that an employee was the victim of sexual harassment, including the the author was penally sanctioned for these facts, the employer took no measures to remove him from the position occupied by the employee.
The perpetrator was only punished with a warning.
Cass. soc., March 3, 2021, n ° 19-18110, not published
The breach sufficiently serious to prevent the continuation of the employment contract was not retained by the High Court when, after the employee had received hundreds of SMS messages containing remarks with a sexual connotation and repeated pressure in order to obtain an act of a sexual nature, the employer dismissed the perpetrator as soon as he was informed.
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Annaelle ZERBIB Juriste M2 DPRT Paris Saclay
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