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Sexist behaviour can justify a dismissal even if the employer had not taken any disciplinary action in the past

Published on : 12/11/2024 12 November Nov 11 2024
Newsletter / Recent Case Law
Newsletter

Under French law, there is a specific article in the French Labour Code which prohibits both sexual and sexist harassment (article L1153-1) but also another article which specifically just prohibits sexist behaviour i.e. gender-based stigmatizing comments or behaviour which is not of a sexual nature (article L1142-2-1). This is the first time the French Supreme Court ruled based on this second specific article.

In this case, the nature of the comments made by the employee who was dismissed were not contested. However, the employee argued that his dismissal was not justified because his employer had known about his behaviour and had never sanctioned him. The Court of Appeal had accepted this argument, but the French Supreme Court overruled it (Court of Cassation, June 12, 2024, no. 23-14.292) on the basis that the employer did not simply have the right to sanction the employee, which could be considered to have been waived, but a legal duty to act to prevent sexual harassment.


Key Action Points for Human Resources and In-house Counsel

Ensure you have complied with all your obligations with regards raising employees' awareness on sexual harassment and sexist behaviour and that managers are trained to identify and respond to such behaviour. Also remind managers that they must report employees misconduct to HR or, take action themselves (if they are empowered to), to avoid being unable to take sanctions in the future.
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