Publié le 15/01/2023

French labour law - Prohibiting male stewards from a hairstyle (braids) authorized for women = discrimination

Article juridique - Droit du travail et social

In a decision of November 23rd, 2002 (n°21-14.060:https://www.courdecassation.fr/decision/637dcb6914982305d4c204e0), the social chamber of the Court of Cassation ruled on the prohibition of a steward from to adopt a hairstyle which was authorized for women.

The social chamber asserts that the social perception of the physical appearance of the male and female genders and the brand image of the airline cannot constitute a genuine and determining occupational requirement justifying a difference in treatment relating to hairdressing between men and women .

The Court of Cassation is more protective of discrimination than the Paris Court of Appeal.

1) Facts and procedure

According to the appealed judgment of the Court of Appeal of November 6, 2019, Mr [C] was hired on May 7, 1998 by Air France, as a flight attendant.

From 2005, the employee presented his hair in African braids tied in a bun when boarding, which was refused to him by the employer on the grounds that such a hairstyle was not authorized by the manual of the rules of uniform for male cabin crew.

Subsequently and until 2007, the employee wore a wig to perform his duties.

Claiming to be a victim of discrimination, he seized, on January 20, 2012, the industrial tribunal with various claims.

On April 13, 2012, the employer notified the employee of a five-day layoff without pay for failing to comply with the rules for wearing a uniform.

On February 17, 2016, the employee was declared permanently unfit to perform the function of cabin crew, due to a depressive syndrome recognized as an occupational disease by the primary health insurance fund.

After having benefited from professional retraining leave and confirmed that he did not wish to be reclassified on the ground, he was dismissed on February 5, 2018 for permanent incapacity and impossibility of reclassification.

On appeal, the employee requested that the employer be ordered to pay a sum in damages for discrimination, moral harassment and disloyalty, a back pay for the period from January 1, 2012 to February 28, 2014 and the related paid holidays, the nullity of his dismissal and consequently the condemnation of the employer to the payment of damages in this respect, a balance of notice with the related paid holidays and compensation for dismissal.

2) Means

The Air France steward criticizes the judgment for saying:

• That the Paris Court of Appeal dismisses his claim for damages for discrimination, moral harassment and disloyalty, his requests for back pay from January 1, 2012 to February 28, 2014, as well as his claims for the nullity of his dismissal and the payment of subsequent sums in damages, pay on notice, related paid leave and severance pay;

• That if it is up to the employee who claims to be harmed by a discriminatory measure to submit to the judge the factual elements suggesting the existence of direct or indirect discrimination, it is up to the employer, if he disputes the nature discrimination of the treatment reserved for the employee, to establish that his decision is justified by objective elements, unrelated to any discrimination; that by dismissing the discrimination without specifying how the African braids would harm the image of the Air France company, the Court of Appeal did not legally justify its decision with regard to article L.1132-1 of the code work ;

• That if it is up to the employee who claims to be harmed by a discriminatory measure to submit to the judge the factual elements suggesting the existence of direct or indirect discrimination, it is up to the employer, it is up to the employer , if he contests the discriminatory nature of the treatment reserved for the employee, to establish that his decision is justified by objective elements, unrelated to any discrimination; that it follows from the statements in the judgment under appeal that the employee had not been able to perform his duties and had had to wear a wig in order to be able to board the flights he was to provide, because of his hairstyle made of African braids, however authorized for women, and that “the factual elements provided by Mr. [C] suggest harassment based on discrimination”

• That in order to rule out discrimination on grounds of sex, the Court of Appeal limited itself to noting a "difference in appearance admitted at a given period between men and women in terms of clothing, hairstyle, shoes and make-up" and to affirm that "this type of difference which takes up the codes in use cannot be qualified as discrimination".

• That by thus justifying the difference in treatment noted by commonly accepted discrimination, the Court of Appeal violated Articles L.1132-1 and L.1134-1 of the Labor Code.

3) Response of the Court of Cassation

The social chamber of the Court of Cassation overturns and annuls the decision of the Paris Court of Appeal with the visa of Articles L.1121-1, L.1132-1, in its wording prior to Law No. 2012-954, of August 6, 2012, and L.1133-1 of the Labor Code, implementing domestic law Articles 2, § 1, 14 § 2, of Directive 2006/54/EC of the European Parliament and of the Council of July 5 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

The Court of Cassation recalls that differences in treatment on grounds of sex must be justified by the nature of the task to be performed, meet a genuine and determining professional requirement and be proportionate to the aim sought.

The case law of the Court of Justice of the European Union (CJEU, 14 March 2017, Micropole Univers, C-188/15), only by analogy with the notion of "genuine and determining professional requirement" provided for in Article 4 , § 1 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in matters of employment and occupation, the notion of "genuine and decisive", within the meaning of Article 14, § 2, of Directive 2006/54/EC of the European Parliament and of the Council of July 5, 2006, refers to a requirement objectively dictated by the nature or the conditions of exercise of the professional activity in question.

Air France had prohibited the employee from showing up for boarding with long hair done in African braids tied in a bun and that, in order to be able to perform his duties, the person concerned had had to wear a wig hiding his hairstyle on the grounds that that -this did not comply with the reference system relating to male cabin crew, which resulted in the prohibition on the person concerned wearing a hairstyle, although authorized by the same reference system for women, characterizing discrimination directly based on physical appearance in connection with sex, the Court of Appeal, which, on the one hand, ruled on grounds, relating to the wearing of uniform, ineffective to justify that the restrictions imposed on male staff relating hairdressing were necessary to allow the identification of the personnel of the Air France company and to preserve the image of the latter, and which, on the other hand, was based on the social perception of the physical appearance of the male and female genders, which cannot constitute a genuine and determining occupational requirement justifying a difference in treatment relating to hairdressing between women and men, within the meaning of Article 14, § 2, of Directive 2006/ 54/EC of the European Parliament and of the Council of July 5, 2006, has violated the aforementioned texts.

4) Analysis of the decision

The Court of Cassation adopts a more protective solution against discrimination than the Paris Court of Appeal.

In its judgment, the Court of Cassation censures the judgment of the Paris Court of Appeal since it is solely based on sex and not on a genuine and determining professional requirement, women having the right to adopt this type of hairstyle, this prohibition applies only to men.

The social chamber affirms that a hairstyle cannot be a criterion for identifying aircrew, unlike a uniform, therefore it cannot justify the difference in treatment between men and women.

The High Court reinforces the principle of equality between men and women by considering that it is not possible to prohibit a hairstyle for men, if it is authorized for women.

In a judgment of January 11, 2012 No. 10-28.213 relating to the wearing of earrings by an employee, the Court of Cassation had affirmed with the visa of Article L. 1132-1 of the Labor Code that "no employee shall may be dismissed on the grounds of gender or physical appearance, the Court of Appeal [which] noted that the dismissal had been pronounced on the grounds, stated in the dismissal letter, that "your status in customer service does not did not allow to tolerate the wearing of earrings on the man that you are", from which it resulted that it was due to the physical appearance of the employee in relation to his sex; that having noted that the employer did not justify his decision to require him to remove his earrings by objective elements foreign to any discrimination, she was able to infer that the dismissal rested on a discriminatory ground; that the plea, ineffective in that it is based on Article L. 1121-1 of the Labor Code, which the Court of Appeal did not apply, is unfounded”. https://www.legifrance.gouv.fr/juri/id/JURITEXT000025151516/

Sources:

Ruling November 23, 2022, n°21-14.060: https://www.courdecassation.fr/decision/637dcb6914982305d4c204e0

CJEU, March 14, 2017, Micropole Univers, C-188/15:

https://eur-lex.europa.eu/legal-content/fr/TXT/?uri=CELEX:62015CJ0188

Article L.1132-1 of the labor code:

https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000045391841

Articles L.1121-1 of the labor code:

https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006900785/

Article L.1134-1 of the labor code:

https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000033461510

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)