In a ruling dated March 25, 2026 (24-14.788), published in the official bulletin, the French Supreme Court (Cour de cassation) ruled, to our knowledge, for the first time on the interplay between discrimination laws and the protection afforded to pregnant employees.
It held that when an employer terminates an employee's probationary period upon learning of her pregnancy, the burden of proof rests with the employer to demonstrate that the decision is justified by factors unrelated to the pregnancy.
Therefore, with this ruling of March 25, 2026, the Court of Cassation reversed the burden of proof. The Court of Appeal, in rejecting the claims for the invalidity of the termination of the probationary period after finding that the employer had been informed of the employee's pregnancy prior to the termination, held that the employer was not required to justify the reasons for ending the probationary period and that the employee had not established any factual evidence suggesting the existence of direct or indirect discrimination.
The Court of Cassation ruled on the applicable evidentiary regime.
Thus, the Court of Cassation applied the regime stipulated in Article L1225-1 of the French Labor Code and rejected the application of the evidentiary regime for discrimination provided for in Article L1134-1 of the French Labor Code.
IV. Analysis of the French Supreme Court's (Cour de cassation) decision of March 25th, 2026.
The question posed to the Supreme Court is unprecedented, which gives this decision particular significance.
This case concerns the relationship between the burden of proof for discrimination and the protection afforded to pregnant women.
First, there is the classic and well-established burden of proof applicable to all decisions made by the employer based on one of the prohibited discriminatory grounds set forth in Article L1132-1 of the French Labor Code, including pregnancy.
This burden of proof stipulates that an employee alleging discrimination must present factual evidence suggesting the existence of direct or indirect discrimination. It is then up to the defendant to prove that their decision is justified by objective factors unrelated to any discrimination.
Second, a specific burden of proof for the protection of pregnant women is provided for in Article L1225-3 of the French Labor Code.
It is the employee's responsibility to provide proof of her pregnancy and that the employer was aware of this at the time of the termination of her probationary period.
The employer then has the burden of proof to demonstrate that their decision was justified by factors unrelated to the employee's pregnancy. Finally, in case of doubt, the benefit of the doubt goes to the employee.
The stakes are therefore considerable, because while both systems provide for adjustments to the burden of proof, the one specifically designed to protect pregnant women is more favorable to the employee.
It is precisely on the question of the interaction between these two legal frameworks that the Paris Court of Appeal's reasoning was overturned.
The Court of Cassation rejected the Court of Appeal's reasoning, which had relied on the traditional discrimination framework to justify its ruling.
It found that the Court of Appeal, by dismissing the employee's claim on the grounds that she had not provided evidence suggesting discrimination, had placed an undue burden of proof on the employee.
The highest court provided a very clear and unambiguous answer. When an employer terminates an employee's probationary period while aware of her pregnancy, the employer must demonstrate that the decision was justified by factors unrelated to the pregnancy.
It thus applied the specific burden of proof applicable to maternity protection. The reported decision demonstrates the importance the Court of Cassation attaches to the protection of maternity within the employment relationship. By applying this specific evidentiary regime, it aligns with the legislature's intent, which enshrined this protection in an entire chapter of the Labor Code.
By requiring employers to justify any termination decision made with knowledge of an employee's pregnancy, the Court strengthens the effectiveness of protection against discriminatory measures based on this condition.
To read the full brief, click on the link below.
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
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