The Minister of Justice has just tabled Bill no. 8032, which supplements the Criminal Code with a new aggravating circumstance for offences (crimes and délits) motivated by discrimination, commonly known as "hate crimes".
This is an opportunity to recall the importance of anti-discrimination legislation in all aspects of our daily lives, including the workplace.
As persons at the head of a company, employers must make choices constantly: selecting whom to recruit, delegating tasks, setting bonuses, deciding on promotions and raises, juggling competing requests for leave, making tough decisions during downsizing, etc.
In the spirit of freedom of trade and industry, courts have generally recognised broad room for manoeuvre and discretion in the aforementioned choices, with employers allowed to remain "rulers" of their company in consideration for the entrepreneurial risk they shoulder. However, there are certain criteria on which they may not base decisions, and that must not influence their behaviour.
Most commonly, equal treatment requirements are applied between different types of contracts: part-time and full-time employees, temporary and permanent staff, fixed-term and open-ended contracts, remote and in-house positions, etc.
In addition to this, the law sets out a number of personal characteristics of employees that should not be used to justify decisions – doing so on these grounds is discrimination. The list of such criteria may vary from one text to another, but there are common factors.
The Criminal Code has included the offence of discrimination since 1980. It sanctions employers that refuse to recruit a candidate because of their gender or religion, for example. Since 2006, the Labour Code has also contained civil provisions against discrimination; for instance, contractual clauses that grant a family bonus only to married employees are null and void.
The new bill will strengthen this arsenal by doubling the fines and prison terms for any offence committed "on the basis" (en raison) of discriminatory factors. This is the first time such a general aggravating circumstance has been added to our legislation.
The relevant criteria are origin, skin colour, biological gender, sexual orientation, gender reassignment, gender identity, family status, age, state of health, disability, beliefs, political or philosophical convictions, union involvement, and membership or non-membership (real or assumed) of a particular ethnicity, nationality, race or religion.
Employers are exposed to a range of criminal risks on a day-to-day basis, as several areas of labour legislation provide for fines and/or terms of imprisonment; for example, the legislation on working hours and holidays, or on health and safety at work. The offence of obstruction (entrave) may loom over an employer's exchanges with the staff delegation. And they may also be subject to prosecution for psychological or sexual harassment.
Now is therefore the time to be doubly vigilant, raising the awareness of employees, and especially management, about discrimination. Even in good faith, line managers at companies may sometimes make decisions without realising that they have a discriminatory impact. It is also important to verify that existing internal procedures do not contain discrimination, bearing in mind that indirect discrimination – which is not immediately apparent – is prohibited as well.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
