2) No sexual harassment in case of an ambiguous attitude of an employee
Cass. soc., September 25, 2019, n ° 17-31171 (https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000039188588)
Article L. 1153-1 of the labor code defines sexual harassment as "consisting of remarks or behavior with repeated sexual overtones which either attack his dignity because of their degrading or humiliating character, or create against him intimidating, hostile or offensive ”.
The Court of Cassation replied in this decision to the question whether the sending of SMS messages of a pornographic nature repeatedly by a manager to his subordinate justified dismissal for serious misconduct and constituted acts of sexual harassment (see also Harassment by pornographic sms at work: the ambiguity of the subordinate disqualifies sexual harassment, https://www.village-justice.com/articles/harcelement-par-sms-porno-travail-ambiguite-subordonnee-disqualifie-harcelement,32807.html)
2.1. The impact of an employee's ambiguous attitude on the characterization of sexual harassment
In a decision of September 25, 2019 (n ° 17-31171), the Court of Cassation ruled on the case of an employee claiming to have been the victim of sexual harassment by raising to reject her request that she “had responded to the SMS of the employee, without it being known which of them had taken the initiative to address the first message nor that it was demonstrated that the latter had been asked to stop all sending ”.
In addition, the Court of Cassation mentions the fact that the employee had "adopted a very familiar seductive attitude towards the employee."
The cassation judges approved the argument of the court of appeal "which highlighted the absence of any serious pressure or any intimidating, hostile or offensive situation against the employee".
She thus rightly deduced that "the ambiguous attitude of the latter who had thus voluntarily participated in a game of reciprocal seduction precluded that the acts alleged against the employee could be qualified as sexual harassment".
Sexual harassment had already been ruled out when the facts "were part of a relationship of mutual familiarity with the person complaining about" (Cass. Soc., July 10, 2013, n ° 12-11787: https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000027710583&fastReqId=918142539&fastPos=1).
Conversely, in a decision of February 20, 2020, the Court of Appeal of Orleans could consider that “the only single established fact, that Mrs. AC answered on the color of her panties at the request of her colleague, cannot suffice to characterize an ambiguous attitude of the latter, who would thus have voluntarily participated in a game of reciprocal seduction, excluding that the acts alleged against her colleague could be qualified as sexual harassment ”(Court of Appeal of Orleans, ch. social ch. des Prud'hommes, 20 February 2020, n ° 17/02208).
In this case, sexual harassment was established, the ambiguous attitude was not characterized.
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
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