Enforcing the law
They all benefit from the shift in the burden of proof but procedural means of access to evidence remain difficult to enforce. However, French case law is opening up a new line of reasoning concluding that comparative evidence is not always necessary in order to establish a presumption of discrimination that can be inferred from the circumstances.
Admissible means of evidence should include the use of statistics. On 15 December 2011, the Court of cassation has recognized that discrimination on the ground of origin can be established by analysing the origin of lists of hired personnel on the basis of their surname. Article 8 II paragraph 5 of the Law 78-17 of January 6, 1978 relating to information systems, data and the protection of freedom states 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 and repeatedly recognized by the Cour de cassation. Statistics resulting from research reports are not yet commonly used in civil and administrative procedures, but were taken in consideration by the Halde (Equality Body).
Situation testing has been introduced to the Penal Code at article 225-3-1 PC by the Law of March 9, 2006 as evidence of discrimination in criminal courts by the jurisprudence of the Cour de cassation. The Ministry of Justice issued a ministerial instruction in order to present the conditions of enforcement of the situation testing principle and explains that it cannot be used in the context of a fictitious offer or with persons acting under a false identity pursuing a false scenario. The victim has to act under his or her identity, be a truly unequally treated person.
However, testing has not yet been used as evidence in civil cases and considering the strict requirements of fairness enforced in civil procedure, it may be difficult to rely on situation testing as an element contributing to the shift of the burden of proof. Developed by anti-racist NGOs, it is mostly used by them, but as well by individual plaintiffs. It has been used in racial and disability discrimination cases to establish refusal of access to goods and services. Some associations have recently used it in age discrimination cases in access to employment.
All recourses alleging discrimination against a private party – employer, service provider, landlord etc. – must be brought before the civil courts. The salaried employee (in the private sector or contractual agent of an industrial or commercial public service) must bring his or her claim before the Labour Court. All other cases will be brought before the District Court (tribunal d’instance – TI) or Regional Court (tribunal de grande instance – TGI) depending on the amounts involved or claimed.
The Law of 16 November 2001 provides the possibility for representative trade unions and NGOs which have been in existence for over five years to take part in the action. Article 31 of the New Code of Civil procedurerecognises the legal status before the civil courts of any person who has a legitimate interest in the dismissal or granting of the action. In case of discrimination in housing, the Law of 17 January 2002 extends the right of action of NGOs to collective and individual recourse.
The general principle in French civil law is to remedy the prejudice by the award of compensatory pecuniary damages, indemnifying the financial and non-material damages, without further pecuniary sanction or punitive damages. We observe a significant evolution of non-material damages awarded in cases where financial damages are difficult to establish. In cases of discrimination at work, Article L1134-4 LC provides for the possibility of also requesting the annulment of the discriminatory measure concerned, resulting for example in the reintegration of the employee in case of dismissal or in judicial reconstitution of his or her career if discrimination occurred during the development of his or her career. This provision has been amended by the Law no 2008-561 of June 17, 2008, to subject the claim to a statute of limitations of five years.