Extract
[...] This constitutional realism demonstrates the desire to ensure effective social justice, without sacrificing the coherence of the solidarity system. It is therefore necessary to analyze how the High Jurisdiction adjusts the application of the principle of equality in order to ensure the effectiveness of social protection without undermining the foundations of the republican pact. B. The differentiated approach to the principle of equality in social protection The Constitutional Council applies a particularly nuanced reading to the principle of equality in the field of social protection. [...]
[...] Thus, in social and economic matters, certain differentiations have been deemed compatible with the principle of equality because they aim to correct factual inequalities. This is a logic of positive discrimination based not on identity affiliation but on objective and neutral criteria, such as socio-economic or geographical situation. For example, the Constitutional Council has validated specific devices for access to certain university formations for students from priority education zones, considering that the difference in treatment was justified by the need to correct inequalities in access to higher education. [...]
[...] Once access to employment is achieved and the employment contract is signed, discrimination can continue in other forms, such as unjustified pay disparities, obstacles to career advancement, unequal access to training, or unequal access to trade union rights or representation, without forgetting abusive contract terminations. These attacks, sometimes insidious, require increased vigilance from the legislature, but also from the constitutional judge when examining the conformity of laws governing workers' rights. The Constitutional Council has progressively built up an exacting jurisprudence in this area. [...]
[...] Le Bot notes, the constitutional law « or opens the way to a solidary protection of the worker, based not on a strict formal equality, but on a recognition of fragility as the foundation of social rights 46. By combining normative recognition and concrete translations, the Constitutional Council gradually establishes fraternity and solidarity as principles of structuring labor law. The protection of the employee is thereby strengthened, particularly in its most fragile dimensions: health, precariousness, and inequality of opportunities. Constitutional labor law then becomes the expression of a legal humanism, placing vulnerability at the heart of the norm. [...]
[...] It is in this perspective that the Constitutional Council has played a major role and which continues to evolve. As guarantor of the supremacy of the constitutional block, it has gradually made the principle of equality a control lever for social laws, particularly when it comes to fighting against employment-related discriminations. The scope of the principle of equality and its legal application has developed and evolved over the decades. A strictly formal vision, that of identical treatment for identical situations, has been replaced by a more realistic vision, based on real equality.1 This last one considers, in a more profound way, in certain conditions, different treatments, as long as they are based on objective criteria and pursue a general interest. [...]
