Unconscious bias: from the responsibility of a single offender to challenging a system or practices

26 February 2024

We are reasonably well aware that on the other side of the Atlantic, Diversity, Equity and Inclusion (DEI) are major societal issues, probably for sociological and historical reasons, with high stakes and legal ramifications.

Exchanges with some of our American colleagues a few months ago in NYC finally convinced us that these issues were not only at the heart of Employment law, but, more surprisingly for us Europeans, also a recurring theme in business law in its entirety. Thus, in corporate law, contract law etc., “DEI” questions are systematically integrated into the services that business law firms offer.

This is not to say that issues of inclusion and non-discrimination are not debated in France, nor that national and European legislation in this area offers employees less protection than in the US.

“DEI” is leading the debate in French Companies ; not systematically a legal issue

However, it must be acknowledged that the intensity of the risk associated with the criminal offence of discrimination is lower in France than in the United States, where American legislation and courts can have devastating financial and reputational effects on companies.

While these issues are obviously present in French courts, they simply occur less frequently; but their media impact is feared by companies, particularly those that have become accustomed to criticizing practices and, as such, are becoming the target of Trade Unions.

In this context, it is very interesting to note an evolution in our case law which, apparently, tends to draw inspiration from North American judicial practices (Canadian National vs action Travail des femmes CN 1987 40 DLR 4e, 193) ; thus, a decision handed down on December 14, 2022 by our “Supreme Court” resorted to the concept of “systemic discrimination”.

This term might lead one to believe that the company wishes to “institutionalize” discriminatory processes among its employees.

A methodology based on general statistics

In reality, it is no more than a methodology developed by the judge based on general statistics intended to reveal or not reveal discrimination against an employee by the sheer force of numbers; it is specified that the evidence derived from these statistics can be replicated for the benefit of other people.

While these figures are not intended to provide proof per se, they do open the way to sufficient suspicion, and thus to the employer’s obligation to justify the difference in treatment observed between several employees… which could be nearly impossible in some situations, as the challenged practices may not be conscious at all, but ultimately resulting in a discrimination.

Indeed, while on a criminal law standpoint, a discrimination shall be intentional to characterize an offence, there is no such requirement on a civil standpoint, which is especially interesting in the case of “systemic discrimination”, is the intention being usually non-existent, since it exists as a result of the combination of recruitment, internal promotion, mobility and sociability processes, the sum of which reveals a situation prohibited by law.

Regardless of the employer’s lack of intention or will, the figures are intended to arouse suspicion, and the onus is on the employer to explain the differences in treatment, failing which discrimination will be established.

Above all, combat bias

While it is undoubtedly premature to conclude that there has been a paradigm shift in terms of the recognition of discrimination, the Court’s decision is nonetheless evidence of a real trend whose primary aim is to combat bias such as agism; and there is no doubt that its purpose is to increase the pressure on companies to redouble their vigilance on this issue.