Sex discrimination, workplace discrimination, Court of Cassation, labor law, employment contract, disciplinary suspension, reclassification, occupational disease
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Abstract
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Abstract
The Court of Cassation ruled on a case involving sex discrimination against an employee, highlighting the employer's failure to justify objective elements foreign to discrimination.
Extract
[...] Court of Cassation, Social Chamber November 2022, n° 21-14.060 - Can an interdiction related to the physical appearance of an employee based on sex be qualified as discrimination? Commentary on judgment 23 November 2022: Facts: An employee was hired in 1998 by the company Air France as a flight steward. In 2005, the employee presented himself with African braids tied in a bun at boarding. This hairstyle was refused by the employer on the grounds that such a hairstyle is not authorized by the manual of uniform dress rules applicable to commercial male flight personnel. [...]
[...] Similar facts have also been characterized as discriminatory. In fact, a discrimination based on physical appearance related to sex is the dismissal of a server based on the fact that he wore earrings presented by the employer as incompatible with his quality as a man (Soc January 2012). Also, a discrimination based on sex is the dismissal of an employee who has just announced to his employer his transidentity (CJCE April, 1996). These two discriminations were recognized as such since the wearing of the employee's earrings or his transidentity was not sufficient justification to constitute objective elements foreign to any discrimination. [...]
[...] Response of the Court of Cassation : Why did the employee file a complaint with the HALDE? The High Authority for the Fight against Discrimination and for Equality was created by the law of December It is an independent administrative authority. This High Authority aims to identify discriminatory practices, combat them, and resolve problems that may arise. In concrete terms, the HALDE helps to search for evidence of discrimination. It can act in court to promote equal treatment. In this case, the employee filed a complaint with the HALDE because he is a victim of sex discrimination. [...]
[...] The regulation imposes that the hair be styled in an extremely neat way, that the hairstyle be limited in volume and have a natural appearance. However, not all people have the same type of hair. We could have retained that the reference was an additional constraint for certain employees, particularly due to their origins. However, the regulation imposes a 'neutral' appearance on everyone, there is a restriction on the freedom to choose one's appearance, however, all employees must comply with it, so it cannot constitute discrimination. [...]
[...] Why was the employee eventually dismissed for lack of aptitude and impossibility of reclassification within the company ? When an employee is declared unfit and no reclassification within the company is possible, their dismissal may be considered by the employer. The employee's unfitness provided for in Article L1226-2 of the Labour Code must be demonstrated by a medical opinion from the occupational health physician. In this case, on February the employee was declared by the primary health insurance fund definitively unfit to perform the function of commercial flight personnel. [...]
