By Roselyn S. Sands and Mathilde Truchot
Ernst & Young
The obligations upon employers to fight against discrimination are increasing every day under national and European legislation as well as through case law. One recent decision rendered by the Court of Appeal of Paris[1] is a striking illustration of this trend.
In this case, Ms. N., a graduate from one of the most prestigious French schools was hired as a trader by a major French bank in 1982. In 1989, after several promotions, she went on maternity leave. Eventually, she returned to work eleven years later, after having given birth to five children and having combined several maternity and parental leaves. When she returned to work in 2000, she alleged that she had been assigned a less prestigious department of the bank (i.e. she went from the financial department to the retail banking department) and saw her career stagnate.
As a result, in 2007, she considered herself to have been constructively discharged and her employment contract terminated by fault of her employer, on the basis of discrimination related to her sex, her pregnancies and her family situation.
She alleged further that she estimated that her employer had not given her, after she returned, a position similar to that of before her departure, as required by French law; and that, consequently, her career progression had been impeded due to her eleven years of absence and her shift to a part-time job. Moreover, upon her return, her salary had not been readjusted in line with inflation and thus, she had never received a level of remuneration comparable to those employees of the company with equivalent length of service, experience and profile.
After relying on a comparative analysis carried out by experts from the French agency for combating discrimination and for equality (HALDE), the Court of Appeal ruled in favor of the employee and ordered the bank to pay her:
- More than EUR 150,000 for prejudice resulting from discrimination (back pay);
- EUR 7,000 for moral prejudice resulting from discrimination;
- In addition to EUR 150,000 for prejudice as a result of the constructive termination of her employment contract.
Thus, in total EUR 307, 000 which is equivalent to nearly six years full-time salary of the plaintiff.
The decision highlights the increasing risks arising from discrimination claims and the significant financial exposure and damage to the reputation that may result from it. This is relatively new in France and suggests important preventive actions that smart employers should take.
[1] Court of Appeal of Paris, 6th chamber, 5 May 2010, GIE BNP Paribas vs. Ms. N.
