Cases broaden scope of ‘harassment’ for French employers

For several years, both case law and the legislator have expanded the definition of harassment in both its moral and sexual dimensions in order to strengthen employee protection. Two landmark cases have been particularly influential – centred on institutional moral harassment and discriminatory harassment – signalling a shift toward a more protective and nuanced legal framework for employees.

Institutional moral harassment

In a decision in January – the France Telecom Case - the Court of Cassation established the concept of institutional moral harassment.

This case stemmed from a drastic restructuring plan initiated in 2006, which aimed to eliminate 22,000 jobs out of a total of approximately 120,000 employees. Following a criminal complaint the former executives and the company, suspected of having implemented a corporate policy of destabilisation with a view to accelerating departure rates among employees, departed, were indicted and then convicted.

The court ruled that harassment does not require identification of specific victims. It is sufficient that the acts were intended to degrade working conditions. The intent to harm was inferred from a pattern of deliberate actions over several years, forming a “strategy of harassment” at the highest levels of management.

Institutional harassment was characterised by “pressure exerted to control departures in the monitoring of staff numbers at all levels of the hierarchical chain, the taking into account of departures in the remuneration of management members, and the conditioning of middle management to reduce staff numbers during training courses”.

The ruling emphasised that criminal liability could extend to corporate leaders, not just the organisation, when systemic policies result in widespread harm.

This decision underscores the importance of ethical management practices and proactive risk prevention, especially during organisational restructuring. It also sets a precedent for recognising collective harm within a workplace, even in the absence of individual complaints.

Discriminatory harassment

In a separate decision on 14 November 2024, the Court of Cassation formally recognised discriminatory harassment as a distinct form of discrimination under French labour law.

The dispute revolved around a security guard who alleged that he was subjected to racist remarks and discriminatory behaviour by his superiors. Although the Court of Appeal initially dismissed his claim due to a lack of evidence of concrete discriminatory measures, the Court of Cassation overturned this decision.

The court applied article 1, paragraph 3 of Law No. 2008-496, which prohibits any behaviour that violates dignity or creates a hostile environment (i.e. the French definition of harassment) when it is based on a prohibited ground – for instance, origin or gender. Therefore, it ruled that harassment alone – without a tangible employment action – can constitute discrimination if it is based on a protected characteristic. This interpretation aligns with the Labour Code, expanding the scope of protection for employees facing hostile work environments, recognising discriminatory harassment for the first time.

This ruling is particularly impactful because it acknowledges that the mere presence of a degrading or hostile environment, when linked to a discriminatory motive, is sufficient to establish a discrimination.

This solution, which allows for better consideration of the behaviours suffered by employees, already seems to have been applied by trial judges, who have quickly taken up this concept of discriminatory harassment. For example, on 26 November 2024, the Paris Court of Appeal was able to characterise the existence of discriminatory harassment against several female employees who it found were victims of ambient harassment due to the sexist behaviour of colleagues working in an open-plan office.