Malika wants to join a gym near her home, and she wears a headscarf. While inquiring, she notices that the internal regulations state: “All headgear is strictly prohibited (caps, hats, hoods, etc.)”. Since it’s not only religious headgear that is targeted, and all clients are concerned, she’s unsure if this constitutes discrimination. In reality, Malika is facing indirect discrimination.

What is indirect discrimination?

The general regulatory framework for discrimination is set by Article 1 of Law No. 2008-496 of May 27, 2008, on various provisions for adaptation to Community law in the field of anti-discrimination (amended by Law No. 2017-256 of February 28, 2017). The definition is specified in the Penal Code, in Articles 225-1 and following, and the Labor Code contains several provisions that prohibit direct or indirect discrimination based on a certain number of grounds ( Art. L. 1132-1 and following in particular).

The Court of Cassation, for the first time in 2007, condemned indirect discrimination. It thus considered as indirect discrimination based on health status a remuneration system that, while apparently neutral, penalized sick employees (Cass. soc. January 9, 2007 No. 05-43.962).

There are different forms of discrimination, for direct discrimination.

Indirect discrimination constitutes: “an apparently neutral provision, criterion or practice that is likely to result in […] a particular disadvantage for certain persons compared to others (…)” (Article 1 of Law No. 2008-496 of May 27, 2008).

Discrimination is therefore indirect when apparently neutral measures significantly disadvantage a category of people.

Ex.: The exclusion of part-time employees from a company pension scheme may constitute indirect discrimination against women if this exclusion affects a much higher number of women than men and is not objectively justified (Court of Justice of the European Union, May 13, 1986, Bilka, 170/84).

Ex.: A minimum height requirement of 1.70 m in the police force is considered indirectly discriminatory on the grounds of sex (CJEU October 18, 2017 case C-409/16).

Unlike direct discrimination, the definition of indirect discrimination, which comes from Community law, does not focus on the intentionality of the author who may or may not wish to disadvantage a particular category of people. Indirect discrimination is characterized if the norm or practice in question, although neutral, creates de facto unequal treatment.

However, the detrimental measure can be justified if it is based on objective criteria that are necessary and proportional to the assigned missions.

Ex.: Differences in treatment based on age do not constitute discrimination when they are objectively and reasonably justified by a legitimate aim, particularly by the concern to preserve the health or safety of workers, to promote their professional integration (Art. L1133-2 Labor Code).

Ex.: Art. R. 1142-1 of the Labor Code:
“The jobs and professional activities for which belonging to one sex or the other constitutes the determining condition are as follows:
1° Artists called to interpret either a female or a male role;
2° Models responsible for presenting clothes and accessories;
3° Male and female models.”

In the professional context, this means that the principle of non-discrimination does not preclude differences in treatment when they “respond to an essential and determining occupational requirement, and provided that the objective is legitimate and the requirement is proportionate” (Art. L. 1133-1 Labor Code). The employer must then demonstrate that the imposed rule is essential to the performance of the task, essential to the proper functioning of the company.

The legislator has not specified the elements that constitute an essential and determining occupational requirement, nor established a list of specific activities that could justify differences in treatment.

Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, specifies that the essential and determining nature of an occupational requirement should be assessed ‘by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out’.

Example: Requiring job applicants to meet specific height criteria may disadvantage women. If it is not demonstrated that a specific height is essential to perform the job, this constitutes indirect discrimination (Decision of the Defender of Rights No. 2018-016 of 9 February 2018).

The essential and determining nature of an occupational requirement must not cover subjective considerations, such as the employer’s willingness to take into account the particular wishes of the client (CJEU, 14 March 2017, Case C-188/15).

Example: ‘Client requests regarding the wearing of a beard that may have religious connotations cannot be considered as an essential and determining occupational requirement within the meaning of Article 4(1) of Council Directive 2000/78/EC of 27 November 2000’ (Cass. Soc, 8 July 2020, No. 18-23.743).

Penalties

It should be noted that unlike direct discrimination, indirect discrimination is not subject to the Criminal Code:

‘Indeed, it follows from Article 225-2 of the Criminal Code that only discriminations based on one of the criteria exhaustively listed in Articles 225-1 to 225-1-2 are punishable. These texts, which must be strictly interpreted, only punish direct discrimination’ (Cass., crim., 8 June 2021, No. 20-80.056).

In civil matters, damages compensate for the entire prejudice resulting from the discrimination, throughout its duration (Art. L.1134-5 of the Labor Code).

How to Prove Indirect Discrimination?

The evidentiary methodology is particular in matters of indirect discrimination, as highlighted by the Court of Cassation in its jurisprudence (Cass. soc., 14 November 2019, No. 18-15.682).

As indirect discrimination is hidden by a neutral criterion acting as a screen, it is discovered by examining the effects of the rule or practice. Therefore, it is not appropriate to focus solely on the facts specific to the dispute, but one must begin by questioning the discriminatory effect of the norms on a global level.

When an employee presents factual elements suggesting the existence of discrimination, it is up to the defending party, i.e., the employer, to demonstrate that their decisions are based on objective elements unrelated to the alleged discrimination (Art. 4 of the Law of 27 May 2008 and Art. L. 1134-1 of the Labor Code).

Thus, initially, the person who believes they are a victim of discrimination in a professional context must establish a set of converging indicators suggesting the existence of discrimination in order to raise a reasonable doubt in the mind of the judge. The intention of the author is not taken into account, and a conviction for discrimination could occur only if the discriminatory effect is realized or likely to be realized.

In a second step, if the judges consider that the apparently neutral provision or practice is likely to cause a particular disadvantage, the burden of proof lies with the employer, who must therefore justify that the criterion is objectively justified by a legitimate aim and that the means to achieve this aim are necessary and appropriate.

The judge then verifies that:

• The disadvantage to persons falling under a criterion is objectively and reasonably justified by a real and materially verifiable legitimate objective;
• The measures taken by the employer are necessary and suitable to achieve this objective;
• These means are proportionate to the aim pursued.

If the employer can justify these three points, the presumption of indirect discrimination falls. Even if people suffer unfavorable treatment, it does not constitute discrimination.

However, if the employer cannot fully justify their policy, indirect discrimination is established.

What to Do if You Think You Are a Victim of Indirect Discrimination?

• Gather as much evidence as possible. Proofs can be diverse: testimony, presentation of documents, or even testing or situation testing.
• Non-contentious approaches are possible: you can refer the matter to the Defender of Rights, who is empowered to intervene in cases of discrimination.
• Depending on the situation, you can refer the matter to the competent civil, criminal, or administrative court.
• A class action is possible in matters of discrimination (Decree No. 2017-888 of May 6, 2017) when several people, placed in a similar situation, have suffered direct or indirect discrimination, based on the same grounds, from the same person (private or public). The action can be brought by associations legally declared for five years under certain conditions or, for discrimination committed at work, by representative trade unions.
• Inform your employer of the discrimination in writing.
• In the context of employment, you can report discriminatory behavior or act to the labor inspectorate.
• You can also alert the employee representatives.
• You can call on Equitas for legal support and assistance.

APPLICABLE REFERENCES

Law No. 2001-1066 of November 16, 2001 on the fight against discrimination; Law No. 2002-73 of January 17, 2002 on social modernization; Law No. 2008-496 of May 27, 2008 on various provisions for adaptation to Community law in the field of anti-discrimination; Directive No. 2000/78/EC of November 27, 2000, establishing a general framework for equal treatment in employment and occupation; Law No. 2016-1547 on the modernization of 21st century justice of November 18, 2016; Decree No. 2017-888 of May 6, 2017.

Articles 225-1 to 225-4 of the Penal Code (cases of discrimination and criminal sanctions); Art. L1132-1 (discrimination at work); Articles L1133-1 and L1133-6 of the Labor Code (authorized unequal treatment in the private sector); Articles 122-45 and 122-46 of the Labor Code; Decision of the Defender of Rights, Nov. 15, 2021, No. 2021-290; Decision of the Defender of Rights Dec. 21, 2018, No. 2018-290.