2) Restrictions

2.1) Prohibition of sexual harassment and sexist behavior

Although employees are free to have romantic relationships, these relationships must be made.

Indeed, the dividing line between seduction and harassment is fine.

Judges consider, for example, that attempting to obtain sexual favors from an employee by multiplying calls and gifts, by going to her home and intruding into her private life, in order to convince her and even to compel her to yield to her advances constitutes sexual harassment (Cass Soc 3 Mar. 2009, n° 07-44082).

In the judgment of September 25, 2019 (n° 17-31171), the Court of Cassation considers that the "game of reciprocal seduction" between the superior and the employee who pleaded to be harassed sexually, allowed to dismiss this qualification of harassment sexual.

In the event of harassment, it is the employer's responsibility to take all necessary measures to protect employees (L. 4121-1 of the Labor Code).

2.2) Duty of neutrality of the employee

If it is incumbent on the employer to be indifferent to the employee's romantic relationships, the latter must respect the demarcation between private and professional life.

That is to say that employees cannot manifest their feelings in the workplace too explicitly.

Similarly, they are prohibited from abusing the professional means at their disposal for any purpose other than professional.

Promotions and benefits granted within the company must depend on professional skills, an employee cannot favor its spouse to the detriment of others. When the employer validates such a promotion, he must be able to show that the choices made are based on considerations that are unrelated to any discrimination (L.1134-1).

If drifts are detected in the workplace, the employer may, after having reframed the employee, send him a warning or any other proportionate and justified disciplinary sanction.

Lastly, the case law allows the validity of the non-disciplinary dismissal for facts, relating to the personal life of the employee, which has caused an objective disorder characterized in the company.

This disorder is assessed in terms of the employee's functions and the company's specific aims (Cass Soc, January 22, 1992 n° 90-42517).

In this case, a RENAULT employee had been fired for buying a Peugeot 405.

The Court of Cassation recalls the freedom of "goods and services" and considers that the dismissal is without cause because the employer did not show "any objective trouble to the company".

In addition, the Court of Cassation (Cass Soc 9 July 2002 n ° 00-45068) considers that "the violence of an employee towards his concubine, also employee of the company, which had given rise to his arrest, has caused a marked objective disturbance, even if it was a matter of personal life; the employer could fear new incidents and the reputation of the company and the image of the employees could be affected; that the dismissal was therefore admissible ".

Thus, the impact of the relationship on the operation of the company and the organization of work must be measured.

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See also our 3 articles:

. Sexual harassment and sexist behavior at work: what does the DGT recommend? https://www.village-justice.com/articles/harcelement-sexuel-agissement-sexistes-travail-que-preconise-dgt,31229.html

. Sexual harassment and sexist behavior at work: this changes with the laws of August 3 and September 5, 2018

https://www.village-justice.com/articles/harcelement-sexual-agencies-sexistes-qui-change-avec- law-future 29863.html # MSQpZhpXZVurKows.


. Harassment by pornographic SMS at work: the ambiguity of the subordinate disqualifies sexual harassment



Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris

e-mail : chhum@chhum-avocats.com




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