Evidence of discrimination in the workplace

 The French Labor Code, inspired by European Union rules, requires the alleged victim of discrimination not to demonstrate the intention to discriminate but the appearance of discrimination.

In the context of litigation:

• An employee who believes he/she has been victim of a discrimination must only "present factual elements suggesting the existence of discrimination" in support of his/ her claim (article L. 1134-1§1 of the Labour Code).

This arrangement is guided by the requirement of equality of arms; each party must be able to present its case and, more specifically, its evidence under equal conditions with the other party.

• In the second step, it will be up to the employer to demonstrate either (i) that the elements invoked by the employee are insufficient to assume that discrimination has occurred, or (ii) that the measure is justified by objective elements unrelated to any discrimination (article L. 1134-1§2 of the Labour Code).
• The judge forms his conviction after having ordered, if necessary, all the measures of inquiry that he considers useful (article L. 1134-1§3 of the Labour Code).

He/ she may therefore also have a role in the proof. The civil judge may also have a role upstream of any referral to the Labour Court.

1. Notion of “factual elements suggesting the existence of discrimination”

This system of proof does not exempt the alleged victim from having to prove anything. If the employee does not have to prove that there is discrimination per se, he/she must at least present material elements showing that there is a disparity of treatment.

As an example, the recruitment of another person for the position for which the employee applied does not constitute an element of fact suggesting the existence of discrimination (Cass. soc., July 3, 2012, no. 11-11.059).

All means of proof are admitted. These factual elements can be pay slips, memos, or testimonies, for example.

2. The role of the employer

If the employee provides sufficient evidence, the employer must then justify its decision by objective elements unrelated to any discrimination. In practice, the employer must demonstrate that the employees are not in an identical situation.

The alleged difference in treatment must be justified by legitimate reasons, i.e. by criteria of a strictly professional nature.

Otherwise, the decision may be considered discriminatory.

3. Investigative measures ordered by the judge: articulation between the evidentiary regime provided for by the Labor Code and the Civil Procedure Code

The Labor Code expressly provides that the judge shall form his opinion after having ordered all the investigative measures she/he deems useful.

The French Supreme Court (Court de cassation) considered that the existence of the specific evidentiary mechanism of the Labor Code could not exclude the procedure provided for by article 145 of the Code of Civil Procedure (Cass. soc., sept. 22, 2021, n° 19-26.144 F-B, n° 19-26.145, n° 19-26.146, n° 19-26.147, n° 19-26.148, n° 19-26.149).

Under the terms of this article, any person may ask for an order (on request or in summary proceedings) for "legally admissible measures of investigation" "if there is a legitimate reason to preserve or establish, before any trial, proof of facts on which the solution of a dispute may depend".

For an employee, it is the possibility to access evidence exclusively held by the company and to evaluate the chances of success of his future action.

According to the Supreme Court, it is therefore appropriate to combine the two provisions and an employee cannot be reproached for trying to gather evidence with a view to a future dispute.