Copé, towards quota?

Jean-François Copé

In January 2011 (27 January 2011), it was decided that some companies would be required to have a quota of women at their board.

Woertz Act, an ambiguous law.

The much discussed law reforming pensions adopted on 9 November 2010 (n°2010-1330) contained an article 99 providing for some sanctions for companies that have not negotiated or adopted an action plan ("plan d'actions"). Sanction  can be up to 1% to the wages bill. Decrees defining sanctions are still to be published.

Vautrin Act, the last chance Act?

The Act passed on 23 March 2006 (n°2006-340) deals with pay equality between men and women. It declared that by December 2010, there will be no pay gaps and that by 2008 sanctions were to be adopted by the Parliament if companies were not cooperating. No such law was passed and we had to wait until 2010 to see an rather ambiguous law providing for some light sanctions.

Génisson Act, towards a mandatory negotiation ?

The Génisson law enacted on 9 May 2011 (Act n°2001-397) provided for two types of negotiations:

(i)            a specific negotiation on professional equality and measures to reach this equality

(ii)          an “integrated” negotiation” by which companies must take into account professional equality during annual collective bargaining (working time, training, etc.) or during the annual collective bargaining on salaries. This negotiation aims to define and program measures to axe pay gaps between men and women by December 30, 2010 (article L.2242-7 of the French Labour Code)

In addition this Act provided new criteria and figures defined by a decree for the Compared situation report (Rapport sur la situation comparée, RSC)

Aubry Law (1998)

The Aubry Laws (1998 and 2000) are more famous for the introduction of working time reduction in France than the measures they contained on professional equality.  However their roles should not be neglected. They contained provisions to ensure the right to request to change one’s contract to a part time and ensuring better access to full time position for part timers.

Roudy Law on professional equality (1983), a failure

The first professional equality Law in France (so-called Roudy Law) was enacted by the socialist government on 13 July 1983.

Yvette Roudy

It is generally viewed as passing from a formal equality perspective protective for women to a more substantial approach. It promoted negotiating at company level agreements with trade unions and temporary pro-active measures.
Needless to say that this law was a failure and hardly any company enacted such agreements. Several reasons explains it :
(i) the economic crisis modified the priorities of the government,
(ii) the lack of sanctions did not encourage companies to adopt any measures, etc.

“Guillotine pension clauses” are discriminatory in public companies (2011)

Cour de cassation 16 February 2011 n°10-10.465 and n°09-72.061
Two cases have held illegal automatic pensions provisions applied inEDF (national electricity company) and SNCF (national railway company). Per their internal statutes, those companies have a system by which employees are automatically pensioned at the age of 60 years (“clauses couperet” so called “blade clauses” or “guillotine clauses”).
Several jurisdictions have until now held that those automatic pension clauses were not illegal in public companies and did not constitute discrimination forbidden by article L.1132-1 of the Labour Code.
In the 2011 cases, judges have held that those provisions breached article 6(1) of the 2000/78 Directive (“Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”).
In the EDF case, judges held that the Court of Appeal did not review whether the discrepancy in the treatment based on age was objectively and reasonably justified by a legitimate objective and that means were appropriate and necessary. In the SNCF case, the Court rejected the company’s appeal indicating that its sweeping statement could not enable to justify the pensioning of the employee and was therefore discrimination based on age and was thus null and void. Carelessly, the SNCF limited itself to revert to the Conseil d’Etat decision in the same case (CE 19 mai 2006, n°274692
In practice, this does not mean that all guillotine clauses are null and void in public companies as it still possible to justify them according to article 6(1) of the EC Directive.