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definitions

Sexual and gender-based misconduct and violence

đź“• [L.1142-2-1 of the Labour Code] No one shall be subjected to gender-based misconduct, defined as any behaviours directed at a person because of their sex or gender, which is designed to, or leads to harming their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Here are some examples of gender-based misconduct:

• Sexist remarks and jokes (e.g. regularly telling sexist jokes to a colleague and making them uncomfortable);
• Gender-based incivility (e.g. using degrading language, ignoring a colleague’s legitimate requests, not allowing a colleague to speak or interrupting them, unreasonably questioning an employee’s judgement on a matter within their professional competence, or addressing them in unprofessional terms);
• Social gender codes policing (e.g. criticizing a woman because she’s not “feminine” or a man because he’s not “manly”);
• Colloquialisms (e.g. addressing a women with terms such as “sweetheart”, “lovely”, “beautiful”, “darling”);
• False seduction (e.g. making insisting comments on someone’s outfit or hairstyle);

• Benevolent sexism ((e.g. valuing a manager only in terms of gender-stereotypical qualities such as her listening skills, her sensitivity, her attention to detail, etc.);

• Sexist opinions on maternity and family responsibilities (e.g. pointing out
the unavailability of an employee in the evening because she has to take care
of her children);

The perpetrator of gender-based misconduct at work is punished by a disciplinary sanction.

📕 [Art. 222-22] Sexual aggression is any sexual assault committed with violence, constraint, threat or surprise or, in the cases provided for by law, committed on a minor by an adult.

Sexual assault can be, for example :

• Pushing an employee against a wall and touching their bottom;
• Touching an employee’s breasts, thighs, genitalia, or kissing them on the mouth by surprise, threat, violence or constraint.

Sexual assault is more severely punished by criminal law than sexual harassment: the penalty is 5 years’ imprisonment and a fine of €75,000, which can be increased to 10 years’ imprisonment and a fine of €150,000 in case of aggravating circumstances [Articles 222-27 and following in the Penal Code].

📕 [art. 222-23 du code pénal] Any act of sexual penetration, whatever its nature, or any oral-genital act committed against another person with violence, constraint, threat, or surprise, is rape.

Rape is punished by fifteen years’ criminal imprisonment.

This punishment can go up to twenty years’ criminal imprisonment when it is committed against a minor under the age of fifteen years, or when it is committed by a person misusing the authority conferred by their position (i.e. the authority of a superior, a professor to a student, a conductor to a musician, etc.).

Rape is considered as a crime, and as such is the most serious case of SGBVH.

Sexual harrasment

[Art. 222-33-2] Harassing another person by repeated comments or behaviours which are designed to, or lead to a deterioration of their working conditions liable to harm their rights and their dignity, to damage their physical or mental health or compromise their career prospects is punished by two years’ imprisonment and a fine of €30,000.

Harassing another person by repeated comments or behaviours which are designed to, or lead to a deterioration of their living conditions by altering their physical or mental health is punished by one year’s imprisonment and a fine of €15,000 when these acts have caused a total incapacity for work of less than or equal to eight days or have not resulted in any work
incapacity.

Harassment also occurs:
a) When those comments or behaviours are imposed to the same victim by several persons, in a concerted manner or at the instigation of one of them, even though each of these persons has not acted repeatedly.
b) When those comments or behaviours are imposed to the same victim, successively from several persons who, even in the absence of concerted action, know that these comments or behaviours constitute a repetition.

The acts mentioned in paragraph I to IV are punished by two years’ imprisonment and a fine of €30,000:

  • 1. where they have caused a total incapacity for work of more than eight days;
  • 2. where they are committed against a minor under the age of fifteen years;
  • 3. where they are committed against person whose particular vulnerability due to age, sickness, infirmity, to a physical or psychological disability or to pregnancy, is apparent or known to the perpetrator;
  • 4. where they are committed through the use of an online public communication service or by means of a digital or electronic medium.
  • 5. where they are committed while a minor was present and attended;

 

Les faits mentionnés aux premier à quatrième alinéas sont punis de trois ans d’emprisonnement et de 45 000 € d’amende lorsqu’ils sont commis dans deux des circonstances mentionnées aux 1° à 5°.

Labour Code, Article 1153 

[1153-1] No employee shall be subjected to :
1. Either sexual harassment, constituted by repeated sexual or sexist comments or behaviours which either harm their dignity because of their degrading or humiliating character, or create an intimidating, hostile or offensive situation.
2. Or acts assimilated to sexual harassment, constituting in any form of serious pressure, whether a single occurrence or repeated, exercised with the real or apparent aim of obtaining an act of sexual nature, whether it is sought for the benefit of the perpetrator or for a third party.

[1153-2] No employee, no trainee or intern, no candidate for recruitment to an internship or a training in a company may be sanctioned, dismissed or subjected to a direct or indirect discriminatory measure, in particular with regards to salary, training, redeployment, assignment, qualification, classification, professional promotion, transfer or renewal of contract,
for having been subjected to or refused to be subjected to repeated acts of sexual harassment as defined in Article L. 1153-1, including in the case mentioned in 1° of the same Article, if the comments or behaviours have not been repeated.


[1153-3] No employee, no trainee or intern may be sanctioned, dismissed, or subjected to a discriminatory measure for having testified to acts of sexual harassment or for having reported them.

[L1155-2] Acts of discrimination committed as a result of moral or sexual harassment as defined in Articles L. 1152-2, L. 1153-2 and L. 1153-3 of this code are punished by one year’s imprisonment and a fine of €3,750.

The court may also order, as an additional penalty, the publicising of the judgement at the expenses of the convicted person under the conditions set out in Article 131-35 of the Penal Code,and its publication, in full or partially, in the designated newspapers. These costs may not exceed the maximum amount of the fine incurred.

The notion of consent is crucial to talk about harassment, the Labour Code indeed mentions being “subjected” to such acts. Thus, a relationship or innuendos of sexual or seductive nature are perfectly legal as long as they are consented to by both parties.

The two parties are not necessarily bound by a hierarchical relationship. Thus, colleagues, even if they are not superiors, persons with no contract because they are in a job interview, or other examples, can be targets for harassment.

Sexual harassment can be expressed through verbal behaviours:
• Insults, name-calling, with a sexual connotation
• Bawdy jokes
• Sexual comments (oral or written, in person, by phone, electronically, etc.),
• Jokes or comments about a person’s appearance, clothing, etc,
• Blackmail,
• Spreading sexual rumours about someone

But also non-verbal behaviours:
• Non-consensual physical contact and unnecessary physical proximity
• Groping,
• Gestures or movements with sexual connotations in the presence of
someone,
• Sharing images with sexual connotations,
• Giving objects with sexual connotations,
• Following someone.

Such behaviours are not necessarily directly aimed at the victim but can also take place in the victim’s environment, so as to make their workplace unbearable.

To be considered as harassment, such behaviours must take place:
• repeatedly so as to create an unbearable environment for the victim.
• non repeatedly if the acts are particularly serious: “any form of serious pressure, whether a single occurrence or repeated, exercised with the real or apparent aim of obtaining an act of sexual nature” constitute sexual
harassment. This behaviour can be for the benefit of the perpetrator of the harassment or for a third party. The following are examples of sexual harassment:

â—‡ Demanding a sexual relation or sexual acts in return for benefits such as a promotion or employment,
â—‡ Applying pressure to demand no retaliation from the victims.

Events outside of the workplace can be included in the definitions and treated in the same way as those in the workplace.

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