Among the many lessons of this study, the ignorance of the situations able to fall under the legal regime of sexual harassment is certainly the most challenging one. Accordingly, how is sexual harassment defined and repressed by the law ?
SEXUAL HARASSMENT IN CRIMINAL LAW
Since a Law of August 6, 2012 (n° 2012-954), the offense of sexual harassment is subject to a double definition, depending on whether the incriminated facts have to be repeated or not.
Repeated acts of sexual harassment
In a first part, Article 222-33 of the French Code pénal defines sexual harassment as “the fact of repeatedly imposing on a person, sexual or sexist comments or conduct that offend her or his dignity as a result of their degrading or humiliating character, or create against her or him an intimidating, hostile or offensive situation”.
In addition to the incrimination of a “sexist connotation”, the new Law of August 3, 2018, specifies that the first definition of the offense is also constituted when the repetition of the incriminated facts proceeds from multiple facts which are not individually reiterated but committed against the same victim by different authors; whether these last having or not acted in concert (1°/2°).
The purpose of this provision is to criminalize acts committed without the intention of obtaining sexual favors, but the effect of which is to compromise the dignity of (harassed) victims, to intimidate or offend them. The sexual connotation of the incriminated facts can be established without any direct or explicit reference to sexuality.
The intention of the author to obtain sexual favors is removed from the default definition of the offense in order to facilitate evidence of sexual harassment by the victims of such acts. The criterion of their repetition implies to prove two or more occurrences, whatever the duration of the interval which separates them in time. The absence of the victim’s consent need not be expressly or explicitly established. The repeated silence which he or she opposes to the perpetrator suffices to demonstrate the refusal.
One unique act assimilated to sexual harassment
In a second part, Article 222-33 of the Penal Code equates to sexual harassment “the fact, even if not repeated, to use any form of serious pressure for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party”.
This alternative incrimination refers to serious actions burdened by the intention of their author to obtain a sexual act for itself or for others. It generally refers to cases of “sexual blackmail”.
The severity of the assimilated fact is evaluated according to the circumstances and the nature of the relations between the perpetrator and the victim. The notion of “an act of a sexual nature” goes beyond the scope of sexual intercourse to encompass all the actions intended to arouse a desire or to realize a fantasy of a sexual nature.
The “apparent intent” test is sufficient to incriminate pressures which, from an objective point of view, induce the victim’s legitimate belief in the reality of the perpetrator’s intentions, even if the actual intention of the perpetrator is not to obtain a sexual act but to satisfy non-sexual objectives such as the victim’s resignation, humiliation, intimidation, etc.
The third and final part of Article 222-33 of the Penal Code provides that the facts of sexual harassment (I), as well as the facts assimilated to sexual harassment (II) are punishable by two years’ imprisonment and 30.000 euros fine.
This sentence is up to three years’ imprisonment and 45.000 euros fine in presence of at least one of the five aggravating circumstances hereafter:
When the perpetrator abuses of the authority conferred by its functions;
When the minor victim is 15 years old;
When the victim has a special vulnerability, known or apparent, due to age, pregnancy, illness, physical or mental disability;
When the victim has a special dependence or vulnerability, known or apparent, because of its economic and social precariousness;
When several people have acted as perpetrator or accomplice;
When the facts are committed online, by means of a communication service opened to the public, of a digital or electronic vector;
When a minor was present and witnessed the acts complained of;
When the author was an ascendant of the victim or possessed authority over her or him, in law or in fact.
Sexual harassment contributes to the criminalization of discrimination provided for in Article 225-1-1 of the Penal Code, which is punishable by three years’ imprisonment and 45.000 euros fine, increased to five years’ imprisonment and 75.000 euros fine when it occurs within or at the entrance of a public space to prohibit the access to it.
Conversely, watch out for false accusations – on social networks or elsewhere. They expose their perpetrator to criminal prosecution for slanderous accusations (Article 226-10 of the Penal Code), defamation or insult (Article 29 of the Law on the Freedom of the Press) – the penalties incurred being up to 5 years imprisonment and 45.000 euros fine for the slanderous accusations; and up to 1 year imprisonment and 45.000 euros fine for defamation or insult.
SEXUAL HARASSMENT IN LABOUR LAW
Since a Law of January 17, 2002 (n° 2002-73), the French Labour Code considers together moral harassment and sexual harassment. The definition of the latter is aligned with criminal law.
Article L1153-1 of the Labour Code provides that:
« No employee shall suffer acts:
1° of sexual harassment, constituted of repeated sexual comments or conduct that offend her or his dignity as a result of their degrading or humiliating character, or create against her or him an intimidating, hostile or offensive situation;
2° or assimilated to sexual harassment, constituted of any form of serious pressure, even if not repeated, for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party”.
Prevention and Sanctions
The employer is bound to respect a general obligation of prevention set out in Article L4121-2 of the French Labour Code.
The risks associated with sexual harassment are expressly included in the list of the nine prevention general principles that obliged it. He or she has to take all necessary measures to prevent, stop and punish acts of sexual harassment committed in a professional context.
Article L1153-5 paragraph 2 of the Labour Code establishes in this respect the obligation for the employer to inform all employees about the criminal definition of sexual harassment.
Article L1153-6 of the Labour Code states that any employee-harasser is liable to disciplinary sanctions, such as lay-off, transfer, demotion or even dismissal. The Social Chamber of the French Court of Cassation validates as being sufficiently motivated the dismissal for serious misconduct of an employee having committed sexual harassment – see notably its decision (n° 16-12493) of July 13, 2017.
The fact that the employer tolerated repeated actions for a period of time before rethinking later does not call into question the classification of serious misconduct.
Acts sanctioned do not necessarily have to be committed to the time and place of work, if they fit into the context of a professional relationship between the perpetrator and the victim. The employer may be sentenced at the latter’s request to pay damages for non-response following a denunciation without reaction. He may also owe damages to an employee wrongfully dismissed for serious misconduct when a simple internal investigation would have sufficed to refute the accusations of sexual harassment against her or him.
On the other hand, false accusations of sexual harassment in a professional context – i.e. from an employee against a supervisor - expose their author to disciplinary sanctions, up to a dismissal for serious misconduct, provided that the bad faith of the accuser can be established – see the judgments (n° 03-4369) of February 22, 2006 and (n° 13-22378) of January 28, 2015 rendered by the French Court of Cassation.
Nullity of the dismissal motivated by the resistance of the victim
The employee dismissed for resisting acts of sexual harassment attributable to her/his employer, to another employee or to a person outside the company, shall obtain in court the nullity of her/his dismissal as long as she/he can demonstrate the true motivation of her/his eviction, this one being without real and serious cause from a legal point of view.
Although this is riskier in terms of evidence, the victim can also take note of the rupture of her or his employment contract and then ask the judge to requalify this act as an abusive dismissal because of sexual harassment at work.
In addition to the compensation related to the nullity of the termination of her/his employment contract – an amount equal to or greater than the last six months of salary in the event of non-reinstatement (Article L1235-3-1 of the French Labour Code), the victim shall seek compensation from the perpetrator for her or his physical and/or moral injury, as well as the payment by the employer of damages for the independent breach of its prevention obligation.
Finally, it should be noted that the “Macron Order” (n° 2017-1387) of September 22, 2017 on the predictability and security of employment relations rules out sexual harassment of cases subject to compensation scales before the Labour Jurisdictions.
If the denunciations of sexual harassment are numerous, they remain much rarer than those received for moral harassment, which concern men and women, young and old, and more generally the whole population of the companies with the same drifts vis-à-vis false denunciations. Justice is rarely straightforward.