Description

In May 2012, the Defender of Rights and the French Data Protection Authority (CNIL), after extensive consultation of experts, published a methodological guide to measuring diversity. It is called “Measuring progress towards equal opportunities” (“Mesurer pour progresser vers l’égalité des chances”). This project was funded by the European Commission within the PROGRESS programme. This publication is primarily intended for employers and HR managers.

Duty bearers targeted, and their specific obligations (if any)

The targeted duty bearers are employers, HR managers, trade unions, diversity managers and workers.

This is the situation in terms of obligations:

• Article 6 bis and article 6 of the Le Pors Law refers to employment of civil servants and public agents. They respectively provide that no distinction, whether direct or indirect, may be drawn between civil servants or public agents on the ground of sex, opinions on political, unionist, philosophical or religious subjects, origin, sexual orientation, age, surname, state of health, physical appearance, disability, membership or non-membership - true or supposed - of a given ethnic group, nation, race or religion.

• Article L. 1132-1 of the Labour Code prohibits discrimination within the field of private employment when hiring or dismissing an employee, or for any other measure adopted during the course of an employment contract. According to this provision, no one may be denied access to a recruitment process or training period, no employee may be punished, dismissed, or discriminated against, either directly or indirectly, as far as his/her remuneration, classification, promotion is concerned in particular, on certain grounds specifically provided for by law.

Prohibited grounds covered by Article L. 1132-1 are the following: origin, sex, mores, sexual orientation, age, family status, pregnancy, genetic characteristics, membership or non-membership - true or supposed - of a given ethnic group, nation, race or religion, political opinions, trade union activity, religious convictions, sexual identity, physical appearance, surname, state of health or disability. This list is the broadest in French law.

• Article 225-2 of the Penal Code punishes discrimination committed against a natural or a legal person, by three years’ imprisonment and a fine of EUR 45,000. The discrimination may consist of the following:
  1. the refusal to supply goods or services;
  2. obstructing the normal exercise of any given economic activity;
  3. the refusal to hire, to sanction or to dismiss a person;
  4. subjecting the supply of goods or services to a condition based on one of the prohibited grounds;
  5. subjecting an offer of employment, an application for a course or a training period to a condition based on one of the prohibited grounds;
  6. refusing to accept a person onto one of the specific courses referred to in Social Security Code.

Article 225-1 states that discrimination is understood as any distinction applied between legal persons by reason of origin, sex, family situation, physical appearance, surname, state of health, disability, genetic characteristics, mores, sexual orientation, age, political opinions, union activities, membership or non-membership, true or supposed, of a given ethnic group, nation, race or religion of one or more members of these legal persons.

French legislation prohibits the collection of sensitive data such as “personal data that reveal, directly or indirectly, the racial or ethnic origins, the political, philosophical or religious opinions, or the trade union membership of persons” (article 8 of Law no. 78-17 of 6 January 1978, on files, data processing and individual liberties, as amended by Law no. 2004-801 of 6 August 2004, on the protection of individuals in the processing of personal data).

In spring 2009, the Commissioner for Diversity and Equal Opportunities, Yazid Sabeg, set up a committee to measure and evaluate discrimination and diversity (COMEDD), chaired by the director of the National Institute for Demographic Research (INED), to study statistical tools in this area. In a report dated February 2010 [1], the committee argued that statistical methods currently permitted under French law – such as the assessment of persons’ origins on the basis of their nationality, parents’ nationality or country of birth – was sufficient in order to measure diversity and discrimination.
Moreover, the 1978 law governing the use of ethnic and racial statistics allows for exceptions to the general prohibition on the use of such criteria, insisting on conditions such as individual consent to the gathering of such information, as well as a requirement of public interest, subject to review by the National Council for Information Technology and Liberties. Researchers can thus use them, under supervision, in targeted surveys.

The report rejects the need to further extend this domain of intervention to include a thematic derogation on data related to origin. However, it further proposes that the HALDE (now the Defender of Rights) be designated as an observatory on discrimination in order to develop indicators, coordinate studies, and receive a mandate to publish an annual report on the national situation on discrimination.

Moreover, neither general procedural rules nor the implementing provisions of EU directives refer to the use of statistical evidence. However, pursuant to general principles of interpretation of EU law, nothing will prevent national courts from using statistics, as a legal means of evidence. Incidentally, article 8 II paragraph 5 of the Law 78-17 of January 6, 1978 relating to information systems, data, and the protection of freedom recognises that personal data can be used in the context of any administrative and judicial proceeding pursuant to the defence or the exercise of a legal right.

Statistics resulting from the comparative situation of employees of a common employer are now commonly used in labour law based on the comparative approach developed by the ECJ in discrimination cases, and repeatedly recognized by the Court of Cassation. In a judgment Airbus Operations SAS n° K 10-15873 dated 15 December 2011, the Court of cassation explicitly referred to the HALDE’s (now Defender of Rights) conclusions.

The decision concerned a candidate of North African descent who was hired a number of times as short term employee with very favorable evaluations. When applying for an indefinite term contract, the application of another short term worker with less favorable evaluations and less experience, but of French descent, was chosen.

The Halde’s enquiries as regards the list of persons employed indicated that among recruited staff between 2000 and 2006, all were of French citizenship, and only two had a last name of North African origin. Moreover, for the period between January 2005 and July 2006, on the 43 employees hired under indefinite term contracts, none had a last name of North African origin. As regards justifications presented by the employer, the Court concluded that the sole fact that the hired employee had a higher degree is insufficient to provide a satisfactory justification given Airbus’ non transparent hiring practices. The Cour de Cassation concluded that discrimination on the ground of ethnic origin had taken place.

Nevertheless, the use of statistics by tribunals remains rather exceptional.

Main objective of the project

This extensive booklet of 106 pages aims at answering questions employers may have such as “To which extent does my company respect the principle of equality and diversity? How to identify discrimination based on origin if it is prohibited to collect racial data? What action can I take in favour of one particular group?” etc.

Employers and HR and diversity managers wonder how to measure diversity in their companies without breaching the law on ethnic statistics.

Tools

• Raising awareness
• Twenty-five practical information sheets give in detail the actions to be taken by the companies. For example, the third and fourth parts of the guide describe the relevant methodology to analyse the HR management files and to conduct monitoring (protocol, categories of useful data etc). It also provides for specific templates (e.g. to obtain the consent of the workers to collect specific data).
• Staff of the Defender of Rights and the CNIL went on a road show in June and July 2012 to present this guide locally in three big cities (Marseille, Paris, Lyon). They coordinated workshops based on case-study for HR and diversity managers, representatives of associations and consultants.
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Key achievements

This methodological document is used as a reference tool by the employment actors. It provides clear and accessible instructions. Thanks to its 25 templates, the guide is used “à la carte” which is handy. Feedbacks are positive.

It is also the result of the cooperation between the Equality Body and the Personal Data Supervisory Authority.