Age and disability differential treatment in France – Contrasting EU and national court’s approaches to the inner limits of anti-discrimination law
| Author | Marie Mercat-Bruns |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
| DOI | 10.1177/1358229114558383 |
| Subject Matter | Articles |
Article
Age and disability
differential treatment in
France – Contrasting
EU and national court’s
approaches to the inner
limits of anti-discrimination law
Marie Mercat-Bruns
Abstract
Illegitimate differential treatment in France puts European Union anti-discrimination law
into perspective. Although French judges and the French legislature have transposed the
directives on legitimate differences of treatment based on age and disability which
include justifications to discrimination in employment, the French judiciary has also
shown it can adopt a higher standard of scrutiny than the Court of Justice of the
European Union, taking into account the specific plight of younger and older workers.
This development is meaningful because this implicitly highlights how civil law systems
can grasp, in a more incisive way, the scope of antidiscrimination law.
Keywords
Age, disability, discrimination, differential treatment, France, French courts
When a French professor starts a class on labour and employment law, the common
practice is to delve into the historical underpinnings of the legal framework. Most often,
age, sex and health issues are cited as the initial reasons France developed protective
Sciences Po Law School, France; Conservatoire National des Arts et Me
´tiers, France
Corresponding author:
Marie Mercat-Bruns, Sciences Po Law School, France and Conservatoire National des Arts et
Me
´tiers, France.
Email: marie.mercatbruns@sciencespo.fr
International Journalof
Discrimination and theLaw
2015, Vol. 15(1-2) 62–79
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229114558383
jdi.sagepub.com
legislation for workers in the 19th century.
1
The progressive construction of the Welfare
state produced a comprehensive social system after the Second World War but, simul-
taneously, categorizing individuals according to certain grounds like sex, age and dis-
ability
2
became one of the requirements necessary to obtain social security benefits.
3
In this respect, French social policy implemented a whole range of schemes and statutes
for the protection of workers which departed from the more traditional conception of the uni-
versal legal subject inspired by the Napoleonic code: its own dogma has always been based on
civil equality; individuals are not supposed to be differentiated by law outside of the realm of
mental capacity and civil majority.
4
The Constitutional Council confirmed this interpretation
of the principle of equality considering formal equality as the norm. However, progressively,
it was considered constitutionally sound and within the scope of substantive equality, to treat
individuals in different situations differently for public policy reasons, taking into account
their vulnerability in employment and scarce government resources.
5
This logic of ‘special
treatment’ in the law led to the acceptance of maternity leave, the exclusion of women from
night work before the Court of Justice of the European Union (CJEU)’s disapproval,
6
flexible
quotas to recruit persons with disabilities, massive early retirement plans and, more recently,
parity rules to diversify executive boards of companies on the stock market.
7
However, in the last 15 years, there has been a shift in the focus of public social
policy
8
which encourages a more inclusive workforce regardless of age,
9
disability or
sex for economic
10
and societal reasons. This change has also been happening under the
impetus of European anti-discrimination policy, following the Amsterdam Treaty. For
example, massive early retirement schemes based on age have been progressively elim-
inated by the French government in order to relieve the unemployment and pension
schemes from the increasing financial burden linked to an aging workforce.
11
Further-
more, since Directive 2000/78 and the inclusion of age and disability as prohibited
grounds for discrimination,
12
French case law on these issues has developed.
13
The
objective of this article is to show that, despite protective social policies or collective
bargaining agreements based on age
14
and disability that still provide justifications for
legitimate differential treatment of workers in France
15
, increasing judicial scrutiny
questions the legitimacy and proportionality of certain company practices and govern-
ment initiatives based on age
16
and disability. Even though European case law influences
the French judiciary on these questions, (I) the standards used by the French judges are
sometimes far more intrusive than those found in the CJEU case law,
17
especially regard-
ing age. (II) In some instances, cross-fertilization between the courts could be possible.
The French courts have developed stimulating case law especially on the standards
applied to age discrimination and legitimate differential treatment.
Legitimate differential treatment based on age and disability:
How European case law influences French case law
Since the entering into force of Directive 2000/78, the prohibition of discrimination in
employment was extended to age and disability but simultaneously, exceptions and jus-
tifications to discrimination were provided, which limited the scope of illegitimate dif-
ferential treatment based on age and disability. Article 4,
18
Article 5
19
and Article 6
20
of
Directive 2000/78 cover three ways in which taking into account age and disability can
Mercat-Bruns 63
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