In a study published on March 3rd, 2022, INSEE states that “gender inequalities in education, work or the sharing of domestic work are only slowly being reduced in practice” [1].
INSEE thus notes that while women are more qualified than men, they represent only 43% of executive and higher intellectual profession jobs in 2020, even if this share has doubled (21% in 1982).
In 2019, the wage income of women remained on average 22% lower than that of men (compared to 28% in 2000), a little less than a third of this gap being explained by differences in working hours.
Women also have less access to the best paid positions and work in less remunerative companies and sectors of activity. Law n°2021-1774 of December 24th, 2021, known as the Rixain law or the decrees of March 10, 2021 and February 25, 2022 aim to remedy these inequalities.
Thus, to accelerate what INSEE calls "a slow decline in inequalities", decree no. 2022-243 of February 25, 2022 specifies the terms of application of law no. economic and professional equality.
1) Ministry of Labor imposes 32 financial penalties and pins 16 companies on the gender equality index
On March 7th, 2022, the Ministry of Labor published the results of the 2022 professional equality index. The Ministry notes that the average score has increased by one point compared to 2021 to stand at 86/100.
It also notes that two of the five indicators are up on 2021:
. The “return from leave”: 11% of the companies concerned obtained a score of 0 and are therefore in breach of the law (406 companies having had 0 on this indicator for 3 or 4 years);
. Parity in the ten best salaries: 27% of companies respect parity or near parity (with a score of 10/10) and 5 out of 10 companies with more than a thousand employees have less than 2 women among these ten highest salaries (4,506 companies having made no progress on this indicator in 3 or 4 years).
However, only 2% of companies obtained the maximum score of 100/100.
In addition, according to the newspaper Les Echos, sixteen companies with less than a thousand employees have been singled out by the Ministry of Labor for their poor marks in the gender equality index [13].
These are Skema Business School; Paris Saint-Germain Football UES; Photobox SAS; Paris Store; GM Consulting; Demathieu Bard Ile-de-France; WKDA France; CAFPI; Egencia SIU; Edeis; CSP Paris Fashion Group; Automobile Reunion; Cotran Reunion; SARL Auto cables; GVA Bymycar Lyon and the software publishing company SAS.
Finally, the Ministry of Labor indicates that the Labor Inspectorate and it have carried out 3,460 interventions since 2019, 504 formal notices and 32 financial penalties [14].
2) Publication of the overall score and the results obtained for each indicator on the company's website
For companies with more than 250 employees, the indicators used to calculate the index are 5 in number (C. trav., art. D. 1142-2):
- the pay gap between women and men;
- the difference in individual salary increase rates (excluding promotion);
- the gap in promotion rates between women and men;
- The percentage of employees who received a raise in the year of their return from maternity leave;
- The number of employees of the under-represented sex among the 10 employees having received the highest salaries.
For companies between 50 and 250 employees, the index is calculated according to 4 indicators (C. trav., art. D. 1142-2-1):
- the pay gap between women and men;
- the difference in individual salary increase rates (excluding promotion);
- The percentage of employees who received a raise in the year of their return from maternity leave;
- The number of employees of the under-represented sex among the 10 employees having received the highest salaries.
The overall score of the gender equality index and the results obtained for each indicator are published annually, no later than March 1 of the current year, for the previous year, in a visible and legible manner, on the company's website where one exists.
They can be consulted on the company's website at least until the publication, the following year, of the level of results and the results obtained for the current year.
In the absence of a website, they are brought to the attention of employees by any means (article D. 1142-4 of the labor code).
V. aussi sur l’index égalité femmes / hommes, retrouvez nos articles :
. Index égalité femmes/hommes : Le PowerPoint de Chhum Avocats du Campus des avocats du Barreau de Paris du 3 juillet 2019 https://blogavocat.fr/space/frederic.chhum/content/index-%C3%A9galit%C3%A9-femmes-hommes-le-powerpoint-de-chhum-avocats-paris-nantes-lille-du-campus-des-avocats-du-3-juillet-2019_;
. Egalite femmes/hommes : Les entreprises de plus de 250 salariés doivent publier leur index au 1er septembre 2019 ! (https://www.village-justice.com/articles/egalite-femmes-hommes-les-entreprises-251-1000-salaries-doivent-publier-leur,32191.html) ;
. Egalité femmes/hommes : Les précisions sur l’index apportées par le décret du 29 avril 2019 (https://www.village-justice.com/articles/egalite-femmes-hommes-les-precisions-sur-index-apportees-par-decret-no2019-382,31715.html) ;
. Egalité de salaire femmes/hommes : Comment calculer l’index ? (https://www.village-justice.com/articles/egalite-salaire-femmes-hommes-comment-calculer-index,30749.html) ;
. Egalité femmes/hommes : Pourquoi l’index est un outil biaisé ? (https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-egalite-femmes-hommes-pourquoi-index-est,32015.html).
3) No later than March 1st, 2022: Publication of progress objectives and corrective measures
3.1) Publication of progress objectives if the grade is less than 85 points
The progress objectives are set for each indicator for which the maximum score has not been reached, when the level of result mentioned in Article D. 1142-3 is less than 85 points. The progress objectives are published on the company's website when there is one, on the same page as the result level.
They can be consulted on the company's website until it obtains a level of result at least equal to 85 points. In the absence of a website, they are brought to the attention of employees by any means (art. 1 of the decree of February 25, 2022; C. trav. art. D. 1142-6-1). These provisions are applicable from the results levels and results calculated over the reference period of twelve consecutive months ending no later than December 31st, 2021 and to be published no later than March 1st, 2022.
By way of derogation from the previous paragraph, companies having obtained, in 2022, for the year 2021, a level of result below the threshold of 75 points may set and publish the progress objectives provided for by the decree of March 10th, 2021 , as well as the corrective and remedial measures provided for in the same article, until May 1, 2022.
In addition, as of March 1sst, 2022, the employer subject to the aforementioned obligation publishes, through external communication and within the company, the corrective measures according to the procedures defined by decree (art. 13 of the law no. 2021-1174 of December 24th, 2021; C. trav., art. L. 1142-9 in fine).
3.2) Publication of corrective measures if the index score is less than 75 points
The decree of February 25th, 2022 provides that when companies have a result level of less than 75 points, the corrective measures must be published on the company's website when there is one, on the same page as the score. overall and the results obtained for each indicator of the index once the agreement or unilateral decision has been filed on the platform of the Ministry of Labor ((https://www.legifrance.gouv.fr/jorf/id/ JORFTEXT000045243486).
These measures must also remain available until the company obtains a result level of at least 75 points.
The employer must also bring them to the attention of employees by any means (Trav. Code, art. D1142-6; art. 1 of the decree of February 25th, 2022).
Finally, the corrective measures envisaged or already implemented, the progress objectives for each of the indicators, as well as the procedures for publishing these measures and these objectives, are sent to the services of the Minister responsible for labor and made available to the social and economic committee (CSE) in the economic, social and environmental database (BDESE) (C. trav. art. D. 1142-6-2; art. 1 of the decree of February 25th, 2022).
3.3) Transitional measures for the results obtained in 2022
The provisions of the decree of February 25, 2022 come into force the day after its publication, i.e. February 27, 2022, subject to transitional provisions (art. 4 of the decree of February 25, 2022, I°).
Thus, on a transitional basis, companies having obtained, in 2022, for the year 2021, a level of result lower than 75 or 85 points depending on the case, have until September 1, 2022 to apply the provisions relating to the setting of progress targets for each of the indicators, the publication of these targets as well as corrective and remedial measures and the transmission of this information to the services of the Minister responsible for labor and to the CSE (art. 4 of the decree of February 25, 2022, II°).
4) The main contributions of the Rixain law of December 24, 2021 for women executives
Law n°2021-1774 of December 24, 2021 aimed at accelerating economic and professional equality was published in the official journal on December 26, 2021.
The main changes it brings are:
- A quota of 30% then 40% of women among senior executives and members of governing bodies;
- A quota of 40% of women on the boards of directors of mutual insurance companies;
- The publication of the objectives for progressing the professional equality index;
- The publication of the professional equality index subject to the granting of financing to the Public Investment Bank;
- The clarification of the terms and conditions of access for pregnant employees to a telework organization;
- The obligation to pay wages into an account of which the employee is the holder or co-holder;
- Access to vocational training schemes for beneficiaries of the shared child education benefit.
The increase in the representation of women among senior executives and governing bodies takes place in different phases.
On the Rixain law, you can read our article Equality between women and men: what does the Rixain law proposal provide for accelerating economic and professional equality?
Sur la loi Rixain, vous pouvez lire notre article Egalité femmes/hommes : que prévoit la proposition de loi Rixain visant à accélérer l’égalité économique et professionnelle
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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