French Employment Law Review (Sep 2016)

Date: Oct 2016

In this issue, you will learn

  • BNP PARIBAS convicted of discrimination against a gay employee
    • Court of appeals of Paris, ruling of September 22, 2016
  • Living in Paris may (also) have advantages
    • Supreme Court, ruling of September 14, 2016
  • A HR director can validly challenge a clause that he drafted himself
    • Supreme Court, ruling of July 6, 2016
  • An employee cannot decide to be on-call duty on his own initiative
    • Supreme Court, ruling of September 8, 2016
  • The question could have arisen in Grey's Anatomy!
    • Supreme Court, ruling of September 8, 2016

BNP PARIBAS convicted of discrimination against a gay employee

A manager of BNP Paribas decided to take advantage of a voluntary redundancy plan to leave the bank in 2012. Later on, he sued his former employer to get damages for discriminatory treatment (bullying and emails with sexual overtones from colleagues, unjustified removal of his bonus...) that would have taken place as a result of his homosexuality.

The case was brought before the Court of appeals of Paris, after the labor court of Paris dismissed the employee's claims. He finally got a favorable decision from the Court of appeals on September 22, 2016. The Court found that the bank was responsible for discrimination because of the employee’s sexual orientation.

The bank was therefore unsuccessful in convincing the court despite the fact that it had emphasized the existence of a charter and a company-wide agreement to prevent and fight against discrimination based on its employees’ sexual orientation. It had also highlighted that the plaintiff was regularly well noted and got salary increases over the years.

The Court of appeals found that the employee was "victim of a sexist and macho behavior from his colleagues making his working environment particularly hostile". The Court also stressed that the employee was stigmatized by colleagues’ messages due to his sexual orientation. BNP Paribas was even blamed for organizing "parties in strip-clubs offering sexual services" (!).

With regard to the removal of the plaintiff’s bonus in 2012, the Court held that it came at a time when the employee had achieved 90% of his objectives, while his colleagues, placed in a comparable position, had been paid significant financial incentives.

BNP-Paribas was then sentenced to pay his former employee a sum amounting to around 600,000 euros, including 100,000 euros as damages for the non-material damage that he suffered due to the discrimination against him.

What can we learn from this court decision?

Article 1132-1 of the French labor Code provides that no employee may be subjected to discrimination due to his/her sexual orientation. Under this legal provision, the employee must produce evidence of direct or indirect discrimination. In view of this evidence, the employer must prove that its decision is substantiated by objective elements showing that no discrimination occurred. BNP-Paribas could not therefore base its defense on general considerations (e.g. existence of prevention policies against discrimination and homophobia) or arguments that did not properly address the employee’s claim (e.g. the employee was well noted and got salary increase on a regular basis).

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