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Any decision of an employer as regards recruiting, promotion, dismissal… must be taken according to professional criteria and not on considerations of a personal nature.
“No person can be isolated of a recruitment procedure or with the access to a training course or one period of training in company, no employee can be sanctioned, laid off or be the subject of a discriminatory, direct or indirect measurement, in particular as regards remuneration, of formation, reclassification, assignment, qualification, promotion professional, change or renewal of contract because of his origin, his sex, his manners, his sexual orientation, his age, his membership, his genetic characteristic, family circumstances or not-membership, true or supposed, with one ethnos group, a nation or a race, of its political opinions, of its trade-union activities or mutualists, its religious convictions, of its physical appearance, its patronymic or, except inaptitude noted by the company doctor, because of his health condition or its handicap” (L122-45 article of the Labour regulation).
Respect of the personal and private life
The recruitment of an employee should take place only on the only criteria of competence, aptitude, will and dynamism. The information required in some form that it is during a recruitment must be “in direct link and necessary” with employment suggested and within the framework of the evaluation of the professional capacities.
Exceptions can relate to the sex and the age when the membership of one or the other sex determines an employment (artists of spectacles, models for painters or sculptors, mannequins carrying of clothing…) or during difficult and dangerous work (undergrounds of the mines and careers…). Certain stations are prohibited to the minors below a certain age.
Forms of discrimination
Direct discrimination: when it is deliberated and that the treatment difference is based on a criterion prohibited by the law. A person can be treated less favourably than another in a comparable situation because of her race or her ethnic origin, her religion or her convictions, her handicap, her age or her sexual orientation.
Indirect discrimination: when a provision, a criterion, an apparently neutral practice, is likely to involve an unfavourable effect for a person or a group of anybody because of their race or their ethnic origin, their religion or their convictions, of their handicap, their age or their sexual orientation.
Discriminatory harassing: it is about a control appearing by words, acts or gestures repeated and non-desired, in matter vexatious or scorning and which is likely to attack the dignity or to the physical integrity or psychological of the person or likely to involve for her unfavourable work conditions or a reference. “Harassing aims any behaviour which causes for object or to attack the dignity of a person and to create an intimidating environment, hostile, degrading, humiliating or offensive” (L123-1 article of the Labour regulation).
Penal and civil recourse
If a person were the subject of discrimination, it can deposit felt sorry for near the gendarmerie or police station, public prosecutor.
She has recourse in front of the court of Arbitration, in order to make cancel the decision based on a discriminatory reason and to ask compensation for damage undergone.
It belongs to the person being the subject of discrimination to present to the judge the elements in fact letting suppose the existence of such discrimination, direct or indirect.
Penal sanction
An employer incurs penal sanctions (and imprisonment pains amends). The discrimination defined in article 225-1 and 225-2 of the Penal code, made with regard to a natural person or morals, is punished three years of imprisonment and 45.000 euros fine.
The moral persons can be also declared criminally responsible for acts of discriminations. The incurred sorrows are the fine and the prohibition of activity.
Proof of discrimination
It is with the employer that it returns, if the presumption of discrimination is established, to prove that its decision was made according to objective elements.
The anti-discriminatory provisions apply to all the stages of the contract of employment, since recruitment until the suspension of the industrial relationship. The witnesses of facts and intrigues discriminatory, if they are paid, are protected from any sanction or dismissal resulting from their testimony.
The most unfavourable criteria are the age, the name and first name, the kind, youth, the diploma, women without child or with 3 children and more, and a candidate with the disgraceful face.
Ask for help
The factory inspector. It can communicate to you any document useful for the observation of facts likely to establish the existence or the absence of an ignorance of the articles of the Labour regulation or Penal code prohibiting discriminations
Trade-union organizations. They can exert in justice any action relative to discriminatory intrigues, in favour of an employee of the company or a candidate for a use, training course or period of training in company.
Union delegates. They have a right of alarm and they can seize the employer who must proceed without delay with an investigation and put an end to this situation.
Fight associations against discriminations:
- The High authority of fight against discriminations and for the equality (DUMP) has the role to defend each individual who feels victim of a discrimination of any kind. Phone 08 10 00 50 00.
- Commission on the promotion of the equal opportunity and citizenship (COPEC).
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