LexInter | June 26, 2002 | 0 Comments

DISCRIMINATIONS

LABOR CODE (Legislative Part)
Section 7: Discrimination
Article L122-45
(Law n ° 82-689 of August 4, 1982 art. 1 Official Journal of August 6, 1982) (Law n ° 85-10 of January 3, 1985 art. 24 Official Journal of January 4, 1985) (Law n ° 85-772 of July 25, 1985 art. 109 Official Journal of July 26, 1985) (Law n ° 85-773 of July 25, 1985 art. 5 Official Journal of July 26, 1985) Law n ° 90-602 of July 12, 1990 art. 9 Official Journal of July 13, 1990) (Law n ° 92-1446 of December 31, 1992 art. 27 Official Journal of January 1, 1993) (Law n ° 2001-1066 of November 16, 2001 art. 1 I Official Journal of November 17, 2001 ) (Law n ° 2002-73 of January 17, 2002 art. 164 Official Journal of January 18, 2002) (Law n ° 2002-303 of March 4, 2002 art. 4 III Official Journal of March 5, 2002)No person may be excluded from a recruitment procedure or from access to an internship or a period of training in a company, no employee may be sanctioned, dismissed or be the subject of a discriminatory, direct or indirect, in particular in terms of remuneration, training, reclassification, assignment, qualification, classification, professional promotion, transfer or renewal of contract due to origin, sex, customs, their sexual orientation, their age, their marital status, their genetic characteristics, their belonging or not belonging, real or supposed, to an ethnic group, nation or race, their political opinions,his trade union or mutualist activities, his religious convictions, his physical appearance, his surname or, except in the event of incapacity noted by the occupational physician under Title IV of Book II of this code, due to his state of health or his disability.
No employee may be sanctioned, dismissed or be the subject of a discriminatory measure referred to in the previous paragraph by reason of the normal exercise of the right to strike.
No employee may be sanctioned, dismissed or be the subject of a discriminatory measure for having testified to the actions defined in the preceding paragraphs or for having reported them.
In the event of a dispute relating to the application of the preceding paragraphs, the employee concerned or the candidate for recruitment, for an internship or for a period of in-company training presents facts suggesting the existence of direct discrimination or indirect. In view of these elements, it is for the defendant to prove that its decision is justified by objective elements unrelated to any discrimination. The judge forms his conviction after having ordered, if necessary, all the investigative measures he considers useful.
Any contrary provision or act with regard to an employee is automatically void.
 SOC. – July 3, 2001. CASSATION of N ° 99-41.738. – CA Douai, December 18, 1998. –

Under Article L. 122-45 of the Labor Code, no person can be penalized for their state of health.

 

 

Article L122-45-1
(Law n ° 2001-1066 of November 16, 2001 art. 2 I Official Journal of November 17, 2001) (Law n ° 2002-73 of January 17, 2002 art. 164 Official Journal of January 18, 2002)The representative trade unions at the national or departmental level, with regard to the overseas departments, or in the company may bring any legal action arising from Article L. 122-45, under the conditions provided for by the latter, in favor of a candidate for a job, a training period or a period of training in a company or an employee of the company without having to justify a mandate from the person concerned, provided that the latter he has been notified in writing and has not objected to it within fifteen days from the date on which the trade union organization notified him of its intention. The person concerned can always intervene in the proceedings initiated by the union.
Associations regularly constituted for at least five years to fight against discrimination may bring any legal action arising from Article L. 122-45, under the conditions provided for therein, in favor of a candidate for a employment, an internship or a period of training in a company or an employee of the company, provided that they can be justified by the written agreement of the person concerned. The latter can always intervene in the body initiated by the association and put an end to it at any time.
Article L122-45-2
(Law n ° 2001-1066 of November 16, 2001 art. 2 II Official Journal of November 17, 2001) (Law n ° 2002-73 of January 17, 2002 art. 164 Official Journal of January 18, 2002)The dismissal of an employee following a legal action brought by this employee or in his favor on the basis of the provisions of this code relating to discrimination, when it is established that the dismissal has not been effective. no real and serious cause and is in fact action taken by the employer because of the legal action. In this case, reinstatement is by law and the employee is regarded as having never ceased to hold his job.
If the employee refuses to continue with the performance of the employment contract, the industrial tribunal allocates him compensation which may not be lower than the wages of the last six months. In addition, the employee also benefits from an indemnity corresponding to the termination indemnity provided for by Article L. 122-9 or by the applicable collective agreement or agreement or the employment contract. The second paragraph of article L. 122-14-4 is also applicable.
Article L122-45-3
(Law n ° 2001-1066 of November 16, 2001 art. 3 Official Journal of November 17, 2001) (Law n ° 2002-73 of January 17, 2002 art. 164 Official Journal of January 18, 2002)Differences in treatment based on age do not constitute discrimination when they are objectively and reasonably justified by a legitimate objective, in particular by employment policy objectives, and when the means to achieve that objective are appropriate and necessary .
These differences may consist in particular of:
– the prohibition of access to employment or the establishment of special working conditions in order to ensure the protection of young people and older workers;
– the setting of a maximum age for recruitment, based on the training required for the post concerned or the need for a period of

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