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  • Writer's pictureDevika Agarwal

France Outlaws Sexist Comments at Workplace

On 31st March, 2022, certain amendments to the Code du Travail (the French labour code) came into force which inter alia expand the definition of sexual harassment to include sexist comments at workplaces. This development is significant given that France has faced flak in the past from organisations like Human Rights Watch for not doing enough to protect women from workplace sexual harassment.

Background of workplace sexual harassment laws in France:

Sexual harassment at workplace was criminalised in France as early as 1993, and offenders were liable to be punished with a fine of upto 100000 francs and one year in imprisonment. However, sexual harassment under the 1993 law in France was limited to direct harassment or quid pro quo harassment of employees by their supervisors and excluded indirect harassment (caused by a hostile work environment).

The law was subsequently revised in 2002 and a decade later in 2012 (Law Number 2012–954). Under the 2012 law, sexual harassment was defined as:

  • repeated sexual remarks or behaviours affecting someone’s dignity because of its degrading or humiliating nature, or creating an intimidating, hostile or offending situation;

  • pressurising someone with the intent of getting sexual favors for oneself or for someone else.

The revised 2012 law covered indirect harassment and sexual blackmail as sexual harassment, and included increased sanctions for sexual harassment. The 2012 law also included safeguards for transsexuals and transgender persons who were victims of retaliatory discrimination.

In 2015, the definition of sexual harassment in the French labour code was expanded to include sexist acts, which were understood as, ‘any act linked to the sex of a person, with the purpose or has the effect of violating her/his dignity or creating an intimidating, hostile, degrading, humiliating and offensive environment.’

The 2022 amendments to the workplace sexual harassment law in France:

While there does not seem to be any specific trigger for the changes to the workplace sexual harassment law in 2022, the amendments may be part of the current Macron government’s plan to cut France’s unemployment rate to 7% by 2022, through reforms to the French labour code.

An explainer by the French government outlines the most recent changes made to the sexual harassment provisions in the labour code. These include inter alia an expansion of the definition of sexual harassment to include gender-sensitive speech and behaviour, and ‘remarks and behaviour of a sexual or sexist nature coming from several persons (acting in a concerted manner or at the instigation of one of them)’. The definition covers both single and repetitive instances of sexist remarks and behaviour. Further, under the French labour code, sexual harassment need not be ‘intentional’ (i.e. the law does not require proof that the perpetrator intended to cause sexual harassment, in order to hold a perpetrator liable for sexist remarks or behaviour).

On comparing the 2022 amendments with the 2015 version of the law, it appears that the workplace sexual harassment law now explicitly covers gender-sensitive speech and sexist remarks per se. In other words, the making of sexist comments at workplace will be punishable under the French labour code, and do not require proof of any intention or effect of harassment.

Treating sexist remarks as workplace sexual harassment:

Some examples of sexist remarks include criticism aimed at a woman because she is not “feminine”, for instance, telling a woman at work, “Stop acting like a tomboy all the time, and start wearing make-up”. Sexist jokes would also be covered. For instance, if a male colleague says to a female colleague, “Do you know what the difference is between you and an answering machine?” “At least it remembers messages.” “Come on, it’s funny, don’t be a blond.” Even if the above statements were meant as humour on the part of the male colleague, they would still be punishable as sexual harassment under the new law.

Jurisdictions worldwide are increasingly recognising sexist remarks at workplace as sexual harassment. Recently, a tribunal in the UK ruled that calling a woman employee ‘good girl’ at workplace amounted to sexual harassment. The tribunal observed that language evolves over time, and comments which may have seemed harmless in the past are today regarded as “racial, homophobic and sexist”.

Closer home, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (informally known as the PoSH law) in India prohibits ‘making sexually coloured remarks’. The ambit of the PoSH law is not wide enough to cover sexist remarks of the kind that the French law seeks to prohibit. However, a woman may still have recourse to legal remedies under the PoSH law if she faces such remarks in combination with overt acts of sexual harassment. Note that others argue that the PoSH law covers sexist remarks independently of any other sexual harassment faced by the victim. For instance, the 2015 handbook on the PoSH law by the Ministry of Women and Child Development considers that ‘displaying sexist or other offensive pictures, posters, mms, sms, WhatsApp, or emails’ amounts to sexual harassment.

Recent measures by France to promote gender equality:

France is bound by certain international treaties to take measures against gender-based violence. The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention) 2011 is one such treaty. France is one of the 21 EU member states to have ratified the Istanbul Convention, and is, therefore, bound by the treaty obligations. For instance, Article 17 of the Istanbul Convention requires national governments to encourage the private sector to set guidelines and self-regulatory standards to prevent violence against women. Another relevant treaty provision is Article 40 of the Istanbul Convention which requires countries to take the necessary legislative or other measures to ensure criminal (or other legal sanction) for any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating/hostile/degrading/humiliating/offensive environment. Sexual harassment which has the effect of creating a hostile work environment would fall under Article 40.

In 2021, France’s Council of Ministers approved the ratification of the International Labour Organization (ILO) Violence and Harassment Convention (2019), which is the first international treaty to address violence and harassment at work. Post ratification, France will be obliged to align its national laws with the treaty obligations, such as recognising the effects of domestic violence and mitigating their impact in the world of work. Further, on ratification of the ILO 2019 Convention by France, the ILO will periodically review France’s national laws to check whether they comply with the Convention.

Last year, France co-hosted the 2021 Generation Equality Forum, a multi-stakeholder forum (comprising governments, corporations and change-makers) which resulted in a 5-year action plan to ‘achieve irreversible progress towards gender equality’. The 2022 amendments to the French labour code prohibiting sexist remarks are a welcome move and demonstrate a strong commitment on the part of France to make good on its promise to address gender inequities in the country.

The Code du travail in digital format is available here


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