French labour law - France – Sexual harassment at work : French case law in 2019 - 2020 by CHHUM AVOCATS (Paris, Nantes, Lille)


5) Failure to comply with the employer's safety obligation: basis for specific compensation in the event of separate losses

Versailles Court of Appeal, 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).

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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Annaelle Zerbib
CHHUM AVOCATS (Paris, Nantes, Lille)
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