Equality)between)women&men) at) work: where)does)French ...
Post on 28-Nov-2021
2 Views
Preview:
Transcript
Equality between women & men at work: where does French law
stand?
Allane MADANAMOOTHOO Research-‐Professor in Law
Groupe ESC Troyes
Key Dates • 1836: Primary educa-on for girls was allowed • 1861: Women were allowed to sit for the Advanced Level Exam
• 1907: Permission to married women to dispose freely of their salary.
• 1938 : Aboli-on of civil incapacity: women were authorized to enroll in university without the permission of their husbands
• 1946: The principle of equality between women and men in all areas is enshrined in the Preamble to the Cons-tu-on
Professional Equality between men & women
ProhibiFon of making a difference in treatment between two employees of different sex
Equality of Rights between men & women
Equal treatment
Equal opportuniFes
It allows men & women to enjoy equal treatment at all levels at work:
employment, vocaFonal training, qualificaFon, classificaFon, promoFon
and working condiFons
Equality rights between men & women
Designed to provide substan-ve equality between men & women through specific ac-ons
This implies non-‐discrimina-on between employees solely because of their sex, whether in a direct or an indirect way
Equal treatment between men & women
Moving from formal equality to real equality
Analyzing inequality not only within the company but also on the labor market
Taking into account direct and indirect discriminaFon
Equality of opportunity
Establishing real and concrete equality
through specific pracFces but limited in Fme known as « posiFve
acFon »
Such acFons are based on the implementaFon of
discriminatory management pracFces in favor of women such as through the use of quotas in
recruitment or promoFon
UDHRC 1948 – Clarifies fundamental rights of the individual
• “ All human beings are born free and equal in dignity and rights “ Art 1
• “Everyone is enFtled to all rights and freedom set forth in this DeclaraFon, without disFncFon as to race, color, sex, language, religion, poliFcal or other opinion, naFonal or social origin, property, birth or other status”
Art 3
The ConvenFon on the EliminaFon of All Forms of DiscriminaFon against Women
• EliminaFon of all forms of discriminaFon against women Emphasizes
Efforts
• “Any disFncFon, exclusion or restricFon based on sex which has the effect or purpose of impairing or nullifying the recogniFon, enjoyment or exercise by women, irrespecFve of their marital status, on the basis of equality of men and women, of human rights and fundamental freedom in the poliFcal, economic, social, cultural and civil or any other field”.
Defines discrimina-on against women
InternaFonal Labor OrganizaFon
Recalls the fundamental principles & rights and promotes, among other things, equal pay (ConvenFon No. 100)
Condemns discriminaFon in employment and occupaFon (ConvenFon No. 111) Protects women from motherhood (ConvenFon No.183)
Treaty of Rome
Sefles the principle of equal salary between men & women for the same work or work of equal value (Art 141)
The Council of EU can take necessary measures to fight against discrminaFon based on sex, race, religion or convicFons, handicap, age or orientaFon (Art 13 – introduced by the Treaty of Amsterdam)
European DirecFves
DirecFve 75/117/EC – Equal salary between men & women
DirecFve 76/207/EC – Equal treatment between men & women regarding acces to employment, training, promoFon and working condiFons
Supervision of these principles Th
e jurisprud
ence of
the Co
urt o
f JusFce of
Europe
an Com
mun
ity
Makes many judgments based on sexual discrimina-on.
Clarifies important issues especially in terms of the burden of proof in gender
discrimina-on.
Has an impact on the law in France
ConsFtuFonal References • Art 3 of the preamble of the consFtuFon 1946 :“the law guarantees women in all areas equal rights with men”.
• SecFon 3 of the ConsFtuFon: “the law favors equal access of women and men to electoral mandates and elec5ve func5ons”.
• Art 1 of the ConsFtuFon: establishes the principle of equality between women and men, especially professional equality.
Roudy Act 13th July 1983 • Strengthens equality in the workplace by emphasizing
general principles of non-‐discrimina-on between employees because of their gender either in terms of recruitment, remunera-on, promo-on or training.
• Defines the noFon of “work of equal value”: “Are considered equal in value jobs that require employees of a comparable set of professional knowledge embodied in a 5tle, degree or professional prac5ce, capacity resul5ng from the experience, responsibility and physical or moral tasks”(Ar-cle L. 140-‐2).
• Requires companies to submit annually a wrifen report “on the compara5ve situa5on of general condi5ons of employment and training of women and men in business” (Ar-cle L. 432-‐3-‐1).
Act of 22 December 1972
• Establishes equal pay between men and women
• Confirms this principle by saying equal pay “for equal work or work of equal value”
Génisson Act of 9th May 2001 • Encourages the prac-ce of “remedial measures to remedy the inequali5es noted in par5cular as regards condi5ons of access to employment, training and career development and with regard to working condi5ons and employment” (Ar-cle L. 132-‐12).
• Strengthens the role of social partners in establishing a compulsory annual nego-a-on on professional equality, mainly those with a local union.
• Reaffirms the obliga-on for companies to achieve a compared annual progress report with a set of sta-s-cal indicators to quan-fy various situa-ons of occupa-onal inequality.
Act of 23 March 2006
• Strengthened Génisson Act on equal pay between women and men.
• A`empts to eliminate the wage gap, the ar-cula-on between work and personal and family life, access to voca-onal training and learning and access of women in delibera-ve and judicial issues
The Act 9 November 2010 on pension reform
• Installs a financial penalty to all companies with more than 50 employees not covered by an agreement, or failing that, a plan for professional equality.
• This wage penalty can be up to 1% of payroll.
• A decree No. 2011-‐822 of 7 July and a circular of 28 October 2011 clarify its implemen-ng rules.
I Principle of non-‐discriminaFon • DiscriminaFon is prohibited whether it is a direct or an
indirect one. • Direct discrimina5on : when a person is treated differently
because of his membership or non-‐membership, real or supposed, of an ethnic group or race, religion, belief, age, disability, sexual orienta-on or sex, a person is treated less favorably than another one, who has not been or will have been in a similar situa-on.
• Indirect discrimina-on is a neutral provision, criterion or
prac-ce, but which could lead to one of the reasons men-oned above, a parFcular disadvantage for persons in relaFon to other persons, unless that provision, criterion or prac-ce are necessary and appropriate.
II ExcepFon of Discriminatory PracFces
• Authorizes the principle of non-‐discrimina-on to be ruled out when membership in one or the other sex cons-tutes a determining and cri-cal professional ac-vity envisaged. This can be for example because of the dangerous nature of the ac-vity but in any event, it is necessary that the objec-ve is legi-mate and the requirement propor-onate.
• Allows an employer to implement interim measures such as the contract for mixed employment or plan for equal pay between men and women to rebalance the place of women within the company, with financial support from the state.
III ProhibiFon of discriminaFon in pay and career progression
• The employer is obliged to ensure equal pay between men and women for equal work or equal value.
• This same principle applies for training, classifica-on, promo-on, transfer, leave, disciplinary ac-on or dismissal.
IV The obligaFon of agreement or acFon plan
• Companies have an obliga-on to take ac-ons to establish professional equality between men and women or if not are subject to financial penal-es.
• This ac-on plan covers the following areas: ar-cula-on between work and family responsibili-es, classifica-on, working condi-ons, hiring, training, qualifica-on, promo-on, and professional compensa-on
The legal remedies and sancFons for discriminaFon
• Remedies and sanc-ons in cases of discrimina-on may be civil or criminal ones.
• Civil route: -‐ Taking legal proceedings in front of the labor court; -‐ The penal-es incurred by the employer can be the canceling of the
ac-on taken (disciplinary, dismissal, remunera-on) and / or payment of damages.
• Criminal route: -‐ Lawsuit taken in front of Tribunal Correc-onnel -‐ 3 years of imprisonment and a fine of up to 45 000 euros where the
refusal to hire, punishments or dismissal based on discriminatory grounds prohibited by law.
-‐ Moreover, an employer who fails to comply with their obliga-on to provide for equal work or for work of equal value, may be subject to imprisonment of one year and / or a fine of 3,750 euros. The court may also order payment of damages.
Supervision & Enforcement of the law
• The « Conseil Supérieur de l’Egalité Professionnelle »
• The Labor Ministry • The HALDE (Haute Autorité de la Lu`e contre les Discrimina-ons et pour l’Egalité)
• The Tribunals
DiscriminaFon in hiring • In labor law, “Discrimina5on is unequal and unfavorable treatment applied to some people, par5cularly because of their origin, their name, gender, physical appearance or belong to a philosophical movement, trade union or poli5cal one”.
• Provided it happens, sex can be a factor of discrimina-on in hiring, especially when the woman has children or in a rela-onship, even if it is not easy to detect because the choice of employer is discretely made.
• The employer is perfectly free to hire the applicant who best meets the job offer.
• This finding was confirmed by the Observatory of discriminaGon through a study revealing the following results: a 32 year old married woman with three children has 37% lower chance of being called for an interview.
• Applica-ons from women with children are clearly repelled except for certain types of employment.
• This discrimina-on exists for all types of jobs being stronger for manual labor. For employment covering intermediate professions, applica-ons from women, even children, are be`er received.
Unequal Pay • The difference in pay between men and women, which is prohibited by law (Ar-cle L1132-‐1 of the Labor Code) is a more visible discrimina-on than in hiring which is less easy to detect. For a similar work, wages can be different. According to a study by INSEE in 2009 women earned on average 20% less than men in the private sector to equal working Fme.
• This finding was confirmed by a study by Mercer Interna-onal in 2009. For the same working -me, it was found that women earned 20% less than men. The frames are also experiencing a pay gap because again according to a study by Mercer, the pay gap between men and women managers would be 14%.
Glass ceiling
• Barriers for women to climb the hierarchical levels within the company.
• Defined as “all visible and invisible barriers that may account for a certain scarcity of women in posi5ons of power and decision-‐making in public organiza5ons in companies, but also associa5ons or unions”. Glass ceiling reinforces inequality between individuals and is an obstacle to women & men equality at work.
• Women's access to posi-ons of responsibility, although it has increased in recent years is s-ll limited: “The higher we move up in the hierarchy, the more men are present. The further we move down the ladder of power, the more women are present”.
Glass Walls
• It serves to demonstrate that high-‐level posiFons that women have managed to afain are confined to less central or less strategic for the organizaFon such as human resources or administra-on.
• Thus, the strategic posi-ons such as product development or finance that will allow them to rise to key posi-ons in the management of the company are always difficult to reach. While almost 45% of employees are women in overall employment, management posi-ons are occupied by only 25% women.
Pregnancy
Pregnancy con-nues to be perceived as an obstacle to women's careers. At job interview, ques-ons are some-mes displaced as pressures of motherhood. Thus, ac-ve woman and pregnancy seems not to mix within the company.
The lack of consideraFon of working Fme "working outside the office"
Women work on average 10 hours more housework than their spouses. 91% of fathers say that the arrival of a child does not change their work.
The persistence of tradiFonal
schemas of success. • A “good mother” first takes care of her children
and family • A “good father” is the breadwinner • A fall in women’s professional life with the arrival of children:
-‐ Without children: 82% -‐ A child under 12 years: 73% -‐ 2 children under 12 years: 64% -‐ 3 children under 12 years: 40%
Professional orientaFon depending on sex sFll persits
• 99% of daily care centers are women • Only 26% of girls are engineering students
Befer support for parenFng
• Evolu-on of childcare
• Paternity leave vs maternity leave
• Parental leave
Changing women’s image in the
workplace • Encourage women’s self-‐confidence
• Work on the image of women as from childhood
• Have a be`er job orienta-on
Standing for women’s rights
• Be`er law enforcement • A be`er understanding of women’s rights from both men & women
References
• Legifrance.gouv.fr • Halde • DARES: www.travail.gouv.fr • Observatoire des inégalités: www.inegalites.fr
top related