Extent of Protection
Whether it is a question of salary, qualification or classification, no employee may be the object of direct or indirect discriminatory measures because of age, sex, marital status, pregnancy, trade union or mutualist activities, political opinions, religious beliefs, origin, morals, sexual orientation, gender identity, genetic characteristics, particular vulnerability resulting from his or her apparent or known economic situation, physical appearance, his surname, place of residence, bank address, actual or supposed membership or non-membership of an ethnic group, alleged race, nationality, state of health, loss of autonomy, handicap, ability to express himself in a language other than French or normal exercise of the right to strike. Union discrimination is also prohibited. In addition, there may be no discrimination against an employee who has suffered, or refused to suffer, sexual or moral harassment or who has reported or testified to one of these acts. However, this does not prevent differences in treatment that meet an essential and decisive professional requirement, provided that the objective is legitimate and the requirement is proportionate. Differences in treatment based on age are permitted as are measures taken in favour of disabled persons, persons residing in certain geographical areas or persons who are vulnerable because of their economic situation, when they are intended to promote equal treatment.
The primary remedy is the payment of backpay. Any provision contained, in particular, in an employment contract or collective agreement which, for the same work or work of equal value, entails lower remuneration for one or more workers of either sex than for workers of the other sex, is null and void. The higher remuneration is then automatically granted to the injured employee. When discrimination is linked to one of the prohibited grounds, the employer is liable for a fine of up to EUR 45,000 and three years in prison. The fine may be increased to EUR 22,500 for legal entities. Failure to respect equal pay for men and women is punishable by a fine (5th class contravention), applied as many times as there are employees paid under illegal conditions. This fine is doubled in the event of a repeat offence within one year. If the action is brought not on the basis of the specific text relating to equal pay, but on the basis of the general principle of professional equality between men and women, the employer is liable for a fine of EUR 3,750 and a maximum imprisonment of one year. Companies that have not (among others) implemented, as of 31 December of the year preceding the year in which the public-contract award procedure is launched, may not bid for public contracts.
Equality is assessed with regard to work of equal value, which requires a comparable set of professional knowledge, abilities derived from experience, responsibilities and physical or psychological burden. The work of male handlers loading and unloading trucks and the work of female workers sorting mushrooms is thus of equal value. For example, an HR manager, who contested the disparity in her compensation with that of her male colleagues, won her case, because the tasks performed, the hierarchical level, the classification, the responsibilities and the importance of the tasks to the company were comparable and since the demands of the positions represented a similar psychological burden. Differences in remuneration are possible if they are justified by objective elements, in particular the requirement of additional work demanded of men. For example, certain bonuses, linked in particular to the presence of children, may be reserved for women, especially in order to remedy de facto inequalities affecting a woman’s opportunities or in application of provisions relating to the protection of pregnancy and maternity, paternity or adoption leave, and breastfeeding. An increase in professional experience or skills, in line with the requirements of the position and the responsibilities actually exercised, may justify better pay.
In the absence of a union delegate or an industry agreement, it is up to the employer to take measures to achieve the objectives of professional. Failure to do so exposes the company to a financial penalty. Companies with at least 50 employees are required to calculate and publish a professional equality index, the purpose of which is, based on regulatory indicators, to measure the pay gap between women and men. The result obtained by the company must be published annually, no later than 1 March of the current year, on the company’s website, if it exists. The employer has a period of 3 years to correct any discrepancies observed. If, at the end of the three-year period, the results are still below 75, the employer may be subject to a financial penalty set at a maximum of 1% of the remuneration, subject to social security contributions paid during the calendar year preceding the end of the period.