The texts published are drafted in their original language and are not subject to any translation.
Discrimination
class action
The introduction of a class action mechanism in the field of discrimination, once enacted, was significant, as many victims are unable to effectively defend their rights before the courts. This is due, inter alia, to the well-known phenomenon of “rational apathy,” lack of awareness of rights, imbalance of power relationships, a certain vulnerability of victims and fear of retaliation, as well as the cost of litigation.
Thus, after thirty years of doctrinal and political debate, and notably following a recommendation of the European Commission, the Law on the Modernisation of Justice in the 21st Century extended class actions to the field of discrimination, particularly in employment relationships.
A class action in matters of discrimination may seek the cessation of the alleged breach, compensation for the damage suffered by the victims, or both.
In actions seeking compensation, only individual damage arising after receipt of the “prior formal notice” is eligible for compensation, except in the case of applicants for employment, internships or training periods. The event giving rise to liability or the breach must have occurred after the entry into force of the law (20 November 2016).
For a class action to be admissible, all victims forming part of the group must be placed in a similar situation and must have suffered, or be suffering, harm caused by the same person and resulting from a breach of the same nature. Accordingly, whether direct or indirect, the discrimination must be “based on the same ground (…)” and be “attributable to the same employer.”
Standing to bring such actions has been granted to representative trade unions at the level of the establishment, the undertaking, the sector, or at national and interprofessional level. This is justified by their capacity to negotiate during the pre-litigation phase.
Where the action seeks to protect the interests of job applicants or internship candidates, class actions may also be brought by associations that have been duly registered for at least five years and that operate in the field of combating discrimination or promoting disability rights. This is explained by the absence of proximity between such candidates and the undertaking concerned. Furthermore, a trade union may seek the assistance of an association, for example due to its expertise in a specific field.
Dialogue must precede any litigation
A mandatory preliminary phase is intended to prevent unnecessary judicialisation and to prioritise a consensual resolution. A class action must necessarily be preceded by a prior formal notice addressed to the employer, by any means conferring a certain date, requesting that the alleged situation of collective discrimination be brought to an end. This stage is designed to create an opportunity to remedy the situation and reach a settlement without judicial intervention. However, it has been criticised as “incoherent” by some commentators, who argue that it merely delays the proceedings.
In the absence of agreement, a period of six months must elapse before the action or application may be brought.
The class action will be decided on the basis of individual cases. According to the first judgment rendered in this field, the court may raise of its own motion a possible absence of reference to individual cases (Administrative Tribunal of Lyon, 29 April 2019, in a class action brought by the trade unions of early childhood educators EJE, CGT and UGICT CGT against the City of Lyon).
Decision. The court rules in a single decision on admissibility, on the alleged breach, and on the defendant’s liability. If a breach is established, the judge has the power to issue injunctions ordering its cessation, subject to periodic penalty payments, and to appoint a third party for that purpose. Where liability is recognised, the court defines the group of persons in respect of whom the defendant is liable, sets the criteria for group membership, determines the categories of compensable harm, and establishes the time limits for joining the group. Publicity measures are implemented only after the exhaustion of ordinary appeals or of a cassation appeal.
Compensation. Compensation follows the procedure known as “individual redress of harm”. Victims must opt in to the action of their choice by joining either the liable party or the claimant (the trade union or association bringing the action). Upon their request, the defendant must compensate those who have joined the group. In the absence of “voluntary” compensation following the judgment, individuals whose claims have not been satisfied may refer the matter to the court that ruled on liability in order to obtain compensation. The claimant who has received a mandate is deemed to be the creditor for the purposes of enforcing the judgment.
The parties may engage in group mediation. In such a case, the agreement is subject to judicial approval, and the court may order publicity measures, particularly where the group has not yet been constituted or identified.
Furthermore, an action for the recognition of rights has been introduced before the administrative courts. This action does not require individualisation and may be particularly suitable where the anonymity of group members is essential. The resulting decision would operate as a declaratory ruling of principle, and each individual concerned could subsequently decide to bring an individual action or to join a class action “following on” (follow-on action) from the initial decision, seeking compensation for individual harm.
In May 2017, the CGT trade union brought a class action against SAFRAN AIRCRAFT ENGINES SAS seeking the cessation of inequalities and compensation for harm resulting from trade union discrimination. The claimant presented 34 trade union activists as “individual cases”, alleging salary disparities ranging from 6% to 18%, calculated according to the CLERC method, as well as the absence of adjustments linked to the exercise of trade union mandates and challenging the scope of the SAFRAN collective agreement. In December 2020, the CGT’s claims were dismissed.
The CGT has also announced a class action against Caisse d’Épargne d’Île-de-France (BPCE) for alleged gender discrimination affecting approximately 2,700 women potentially concerned by a pay gap.
Sud Rail has introduced a class action against SNCF concerning indirect discrimination, based on findings of a wage gap affecting employees with disabilities, who allegedly receive 12% lower remuneration and face 30% greater difficulty in career progression.
On the Number of Class Actions: Register
Further Reading:
Legal Text
Labour Code : Articles L1134-6 à L1134-10