Discrimination: group action to assert your rights

Despite advances in legislation and growing social awareness, discrimination remains a reality in many aspects of everyday life: in recruitment, in career development, in access to housing, credit or even certain services. For the victim, discrimination is not only a hurtful injustice, but also an obstacle that is difficult to overcome. Proving discrimination can be difficult, and taking individual action, which is often long and costly, can seem disproportionate or intimidating.

However, when discriminatory acts are repeated and affect several people in a similar way as a result of the same perpetrator, French law offers a specific tool: group action. Introduced more widely by the 2016 law on the modernisation of justice in the 21st century (known as the "J21 law"), it aims to enable collective action to put a stop to these breaches and obtain compensation for the harm suffered.

This article looks at the two main group actions available in the area of discrimination: the 'general' group action and the more specific group action concerning discrimination in the workplace. We look at who can take action, what specific acts are targeted, what types of damage can be compensated and what are the particularities of their implementation.

General group action against discrimination (2008 Act & J21)

This first action, provided for by article 10 of law no. 2008-496 of 27 May 2008 and for which the procedural framework is defined by the J21 law, is aimed at discrimination that is not specifically covered by employment law.

Who is affected?

• The victims: The action is open when "several natural persons are discriminated against. Important point: only private persons may be members of the group. Legal entities (companies, associations, etc.) that are victims of discrimination cannot benefit from this specific group action, even though the Criminal Code recognises and punishes discrimination against them (article 225-1, paragraph 2). This is a significant limitation.
• The person in charge: The action must be brought against "the same person (article 10 of the 2008 law, taken up by article 62 of the J21 law). This person may be a natural person or a legal entity (company, administration, association, etc.). Unlike the consumer group action, the person responsible does not have to be a "professional". However, the text uses the singular ("one and the same person"), which seems to rule out the possibility of taking action against several perpetrators jointly in a single group action, even if they all participated together in the discrimination. This is another potentially problematic restriction.
• Applicants: Who can launch the action? The Act of 18 November 2016 (Article 63) and the 2008 Act (Article 10) designate certain associations. A distinction must be made between:
  • The associations "duly registered for at least five years and whose statutory purpose includes the defence of an interest adversely affected by the discrimination in question".. The link between the association's corporate purpose and the discrimination targeted must be clear.
  • The associations "regularly registered for at least five years as an anti-discrimination or disability organisation".. Here, the law seems to refer to the association's concrete activity rather than just its statutory purpose. This raises a number of questions: can an association fighting racism take action for discrimination linked to sexual orientation? The text is not explicit about the need for a match between the association's usual activity and the action taken.
  • Article 63 of the J21 law also mentions associations "Approved. Is specific approval required in addition to seniority and the purpose of the articles of association? The texts are not clear on this point.

What discriminatory acts are covered?

Group action can be initiated when victims are the subject of a "direct or indirect discrimination, within the meaning of this Act [the 2008 Act] or existing legislation, based on the same ground and attributable to the same person"..

• Direct or indirect discrimination: Law 2008-496 defines these concepts precisely:
  • Direct : A person is treated less favourably than another in a comparable situation, on the basis of a prohibited criterion (origin, sex, marital status, pregnancy, physical appearance, economic vulnerability, surname, place of residence, state of health, disability, morals, sexual orientation, gender identity, age, political opinions, trade union activities, actual or assumed membership of an ethnic group, nation, race or religion, etc.). The list is long and aims to cover a wide range of situations.  
  • Indirect : An apparently neutral provision, criterion or practice places persons who share the same prohibited criterion at a particular disadvantage, unless that provision is objectively justified by a legitimate aim and the means are necessary and appropriate.
  • The law also includes discriminatory harassment (conduct related to a prohibited motive that undermines dignity or creates a hostile environment) and the fact that to discriminate.
• Based on other "legislative provisions in force"? This potentially opens the door to actions based on discrimination defined elsewhere, for example in the Criminal Code (hazing, sexual harassment, etc.). However, the interpretation remains uncertain.
• Based on "the same motif": This requirement raises a debate. Should all victims have been discriminated against? exactly for the same reason (e.g. all rejected because of their age)? Or can victims who have been discriminated against on different grounds (age, origin, sex, etc.) be grouped together if the discrimination stems from the same behaviour or the same overall policy on the part of the person responsible (e.g. a biased recruitment policy)? The second interpretation seems more logical in terms of the spirit of group action, but the letter of the text could lead to a more restrictive approach.

What losses can be compensated?

One notable positive point: unlike the consumer group action, the discrimination action is not limited as to the nature of the losses that can be compensated. The legislation (the J21 Act and the 2008 Act) is aimed at repairing "damages suffered with no further details.

This means that compensation can be paid for :

• The material damage (loss of income, expenses incurred, etc.).
• The moral damages (psychological suffering, loss of dignity, loss of anxiety, etc.). This inclusion of non-material damage is essential in discrimination cases, where the damage is often primarily psychological.

Even if the texts do not mention it as explicitly as in the case of consumer actions, it is accepted that the action is indeed aimed at repairing the damage caused to the consumer. individual damages of each member of the group, and not an abstract "collective harm".

Action for injunction possible

In addition to compensation, group discrimination actions can also aim to "the cessation of the breach (Article 10 of the 2008 Act and Article 62 of the J21 Act). The aim is to get the judge to order the person responsible to put an end to the discriminatory practice for the future.

Group action specifically for discrimination in the workplace (Labour Code & J21)

The J21 Act created a specific regime, distinct from the general action, for discrimination arising in the context of employment relations. This regime is defined in Articles L. 1134-6 to L. 1134-10 of the Labour Code.

Who is affected?

• The victims: The action is open when several "applicants for a job, an internship or a training period in a company or several employees". are victims of discrimination (article L. 1134-7 C. trav.).
• The person in charge: This necessarily involvesa single employer (article L. 1134-7 C. trav.). As with the general action, it seems impossible to act against several employers jointly, even within the same group of companies, which may limit the scope of the action.
• Applicants: Two categories of players can initiate action:
  • The representative employee trade unions (at company, branch or national level). They can act to defend the interests of candidates and employees.
  • The associations regularly declared over the last 5 years "involved in the fight against discrimination or working in the field of disability".. Please note: the law explicitly limits the ability of these associations to act to defending the interests of applicants for a job or work placement only. As a result, they cannot launch group action for employees already in post who are victims of discrimination. This is a major restriction compared to trade unions.

What discriminatory acts are covered?

Article L. 1134-7 refers to a "direct or indirect discrimination based on a single ground among those mentioned in Article L. 1132-1 [of the Labour Code] and attributable to a single employer"..

• Grounds for discrimination : Article L. 1132-1 of the Labour Code lists the prohibited grounds (origin, gender, sexual orientation, age, family status, pregnancy, genetic characteristics, ethnic/national/racial origin, political opinions, trade union activities, religious beliefs, physical appearance, name, place of residence, state of health, disability, etc.). This list is very similar to that in the 2008 law, but there are a few differences (for example, it mentions "mutualist activities", which are not mentioned in the 2008 law). The relationship between the two texts in the event of divergence is not perfectly clear. Article L. 1132-1 refers to the 2008 law for the definition of direct/indirect discrimination, which should make it possible to include discriminatory harassment.
• Based on "the same motif": The question is the same as for the general action: is it necessary for the grounds to be strictly identical for all victims, or is the employer's overall discriminatory behaviour sufficient?

What losses can be compensated?

As for general action, all types of damage (material and moral) suffered individually by candidates or employees may in principle be compensated (Article L. 1134-8 C. trav.).

However, a a major and much-criticised restriction was introduced by article L. 1134-8, paragraph 2: "except in the case of candidates [...], only losses arising after receipt of the request referred to in Article L. 1134-9 may be compensated under the group action". (this request being the prior formal notice, see below).

Consequence: For the employees (and not the candidates), the group action does not enable not obtain compensation for past discrimination (long-standing discriminatory dismissal, career stoppage over several years, historical pay gaps, etc.). Only losses that have arisen after the employer has been given formal notice to cease the discrimination can be compensated via this action. This largely deprives the group action of its value in remedying discrimination suffered by current employees, relegating it mainly to a preventive role or to remedying very recent discrimination that persists after the formal notice has been served. Employees who have been the victims of discrimination for a long time will still have to opt for individual action.

Action for injunction possible

Like a general action, a group action for discrimination in the workplace can also target the termination of the breach (article L. 1134-8 C. trav.).

Procedure: common points and notable differences

While the two group actions (general and employment) share a common procedural framework stemming from the J21 Act, there are significant differences, particularly at the outset:

• Prior formal notice MANDATORY : This is an essential step for these two actions (unlike the consumer or health actions).
  • For action generalIn this case, a standard formal notice must be sent to the person alleged to be responsible, and legal action can only be taken after a reasonable period of time has elapsed. period of 4 months following receipt (article 64 of the J21 law).
  • For action workA specific procedure is set out in article L. 1134-9 of the Labour Code. The trade union or association must ask the employer to put an end to the alleged discrimination. The employer has 1 month to inform the CSE and the representative trade unions, and must initiate a discussion if requested. Group action can only be brought after a period of three months has elapsed. 6-month period after this request (unless the employer rejects the request beforehand). Failure to comply with this formal notice will render the action inadmissible.
• Jurisdiction : This is the Court of First Instance who has jurisdiction to hear these group actions, including for discrimination in the workplace (and not the Conseil de Prud'hommes, except perhaps for the injunction alone? It is unclear how this will work).
• Compensation scheme : Both actions broadly follow the "J21 common law" regime for the reparation phase. However :
  • For action generalIn this case, the judge can choose between collective liquidation proceedings (if the conditions are met) or individual proceedings.
  • For action workthe French Labour Code (L. 1134-10) seems to require the individual procedure repair only.
• Application over time : An important and restrictive point in common: these group actions (general and employment) are only applicable to events giving rise to liability (discrimination itself). after 20 November 2016 (the date of entry into force of the relevant part of the J21 Act). Previous discrimination cannot be the subject of these group actions.

Discrimination class actions offer a means of collective redress, but their conditions and limits are strict, particularly for discrimination in the workplace involving employees. If you are faced with a situation of repeated discrimination affecting several people, our firm can help you determine whether a group action is feasible and appropriate.

Sources

• Law no. 2016-1547 of 18 November 2016 on the modernisation of the justice system for the 21st century (Articles 60, 62, 63, 64, 66 et seq.)
• Law no. 2008-496 of 27 May 2008 containing various provisions adapting to Community law in the field of anti-discrimination (Article 1, 10)
• French Labour Code (Articles L1132-1, L1134-6 to L1134-10)
• Code of Civil Procedure (Articles 849 et seq.)