NLA REVIEW	Sexual Harassment in the Workplace in France and in the United States	Spring 1997

Introduction

Sexual harassment is a term defining an old problem. Throughout history generations of women have suffered from unwelcome behavior of a sexual nature. In Victorian England women even children working in the coal mines, were harassed on the job. Thus, until recently sexual harassment was considered as part of the usual behavior that working women had to endure.

In the 70's, the women's liberation movements initiated the process of acknowledging sexual harassment in the workplace. According to their opinion, women should no longer endure such unwelcome sexual behavior because women were equal to men. Thanks to the women's liberation movements, many more women aquired education and thus got better jobs. However, they still had to learn how to live and work in a world defined by men.

For the past twenty years, the intrusion of women in the workplace occupying important positions has shifted around the predetermind roles given to men and women by society, and today nobody knows how to react to these changes. Women at work do not know how to address themselve to men or how to dress. Should they either behave like men or put forward their feminity? On the other hand, men do not know where the limits are between harmless flirting and sexual harassment. Furthermore, they hesitate before taking an elevatot alone with a women or even looking at her

In this confused context, sexual harassment is used by people who cannot adapt, whether it is a male who is seeking his new identity or a female seeking a new role.¹

The victims are those who are in situations of subordination and financial dependence, for example divorced or widowed women, lesbians and gays, young people, and men or women from ethnic minorities.²

Consequences of sexual harassment are very painful. Besides psychological effects, physical effects such as migraines or stress are often experienced.

In a narrow sense, sexual harassment means an employer's demand for sexual favors of a subordinate in exchange for job benefits. This form of sexual harassment is called quid pro quo.³

The term sexual harassment in its broader sense includes any unwelcome behavior imposed on a subordinate because of his/her sex. ⁴

Nowadays, most of the industrialized countries provide legal means to counter some aspects of sexual harassment. although they do not all have explicit legislation on the matter. Criminal, Labor, and Civil law are used to respond to the lack of specific rules.

This paper intends to give the main differences between French and U.S. legislation regardiong sexual harassment and it is divided into six sections. The first section defines the term under both legislations. The second section covers the applicable basis to the problem. The third section explains liability and responsibility. The fourth section explore damages. The fifth section covers the procedure. And the sixth section is the conclusion.

Article 222-33 of the French Criminal Code defines sexual harassment as: "The fact of harassing anyone using orders, threats or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him..." ("Le fait de harceler autrui en usant d'ordres, de menaces ou de contraintes, dans le but d'obtenir des faveurs de nature sexuelle, par une personne abusant de l'autorite que lui conferent ses fonctions...")

The French Criminal Code mentions the term sexual harassment in the title in the text itself. The legislature chose to do so to enable punishment for a unique sexual unwelcome behavior. ⁵

In the U.S.: even though the 1980 Federal Equal Employment Opportunity Commissions's (EEOC) guidelines on sexual harassment are not binding upon the courts, many courts, including the U.S. Supreme Court, have deferred to the EEOC guidelines to resolve issues in sexual harassment cases.⁶

The EEOC guidelines define sexual harassment as "unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature" when

1/ submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
2/ submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or,
3/ such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.⁷

From the EEOC guidelines, the courts identified two forms of sexual harassment. One is quid pro quo sexual harassment, where a supervisor demands sexual favors of a subordinate in exchange for tangible job benefits, such as hiring, promotion, job training or job retention. The other form is when the sexual harassment creates a hostile environment, in which the employee is subjected to verbal conduct (such as sexual innuendo, jokes and sexually derogatory remarks), physical touching or graphic displays or sexually-oriented materials. This sexual harassment does not result in a tangible job detriment, but the psychological and emotional work environment of the employee is adversely affected. This hostile work environment can be created by a supervisor, or by coworkers,or even a non employee. ⁸

Applicable Basis

In France three laws are applicable to sexual harassment: The Criminal code, the Labor Code and the Civil Code.

Besides article 222-33 CPF, that specifically punishes sexual harassment, the Criminal Code contains several rules that may be used as a cause of action, such as: certain acts concerning obscene materials, battery, exposure of sexual organs, unnatural and lascivious act, and discrimination based on sex. ⁹

The Labor Code contains several provisions on the consequences of sexual harassment on the employer-employee relationship. For example, the employee, who suffered or refused to suffer harassment from his employer, a representative of the latter, or any other person, abusing of his authority to demand sexual favors, cannot incur any sanction or layoff if he comes forward. ¹⁰ Thus, the employer cannot consider those dealings when he takes steps concerning the employee's status, such as hiring, promotion, and renewal of the contract. ¹¹

The aforesaid criminal and labor rules only concern the quid pro quo harassment.

Other tort claims are possible under the Civil Code, although until now no Court has ruled in that sense.

In the U.S.: besides being illegal sex discrimination under Title VII, sexual harassment has also been held to be a viable cause of action under several other legal theories. These causes of actions include common-law tort claims for assault and battery, invasion of privacy, and negligent and intentional infliction of emotional distress. In addition, federal constitutional and statutory actions have been used successfully by plaintiffs who have been subjected to sexual harassment. These additional legal claims have been recognized by the Courts as supplemental to Title VII claims, although several Courts have found that some tort remedies may be barred by State worker's compensation law.¹²

In France every person is subject to the Criminal Code and no respondeat superior theory is applicable. Therefore, an employer, a colleague or a non-employee, such as a client or a passerby, is responsible for his acts. In other words, if one of these persons commits one of the afore said infractions by harassing somebody, that person will be held personally responsible. The same is true of the Civil Code.

Under the Labor Code, any company head has to take the necessary means to prevent harassment. If he fails in that duty, he is liable for the acts of his supervisors.^l3

In the U.S.: the causes of action based on criminal infractions follow the same theory as in France regarding individual responsibility.

Concerning Civil claims, the U.S. has the respondeat superior legal theory based on common-law agency priciples that states that an employer is liable for the actions of his employees.

Thus, as a result of the 1980 guidelines on sexual harassment issued by the EEOC and the decisions of courts in the area of sexual harassment, there has evolved a set of rules governing the extent of an employer's liability regarding sexual harassment of employees. Some of those rules are quite established, such as an employer is strictly liable for the acts of supervisors in quid pro quo sexual harassment cases. Others are yet to be definitely decided, most notably whether an employer is stricty liable for acts of supervisors that create a hostile work enviroment. ¹⁴

Under the French Criminal Code, two kinds of relief are available: imprisonment and/or fine.

Article 222-33, which specifically condemns sexual harassment, provides a term of imprisonment not exceeding one year and/or a fine not exceeding FF100000.

Under the Labor Code, a court can award an employee who is the victim of sexual harassment damages and within certain conditions reinstatement. Each party may refuse reinstatement, and require or accept instead indemnification for the victim.This indemnity cannot be less than six months of salary. ¹⁵

Under the Civil Code, the employee is entitled to damages in the amount determined by the judge.¹⁶

In the U.S.: the remedies and relief provided under Title VII are limited, particularly in a sexual harassment case. That is one reason that the United States Supreme Court ruled that plaintiffs could pursue other claims beside a Title VII claim. ¹⁷

In the sexual harassment area, these additional claims have most often been State tort or contract claims although Federal constitution and statutory causes of action have also been alleged. What these addtional claims do in a sexual harassment case is to broaden the kinds of remedies available to plaintiffs under Title VII. ¹⁸

Under Title VII, a court can award a victorious plaintiff reinstatement, backpay or "any other equitable relief as the court deems appropriate."¹⁹ Injunctive relief also available if the court finds that the employer has " intentionally engaged...in an unlawful employment practice." That employer can be enjoined from engaging in such practices and [the court may also] " order such affirmative action as may be appropriate."²⁰ Attorney fees are allowed to the "prevailing party."²¹

In sexual harassment cases, particularly hostile work environment cases where the plaintiff may not be fired from his/her job but still experience illegal sexual harassment, back pay or reinstatement are not always appropriate remedies. The employer could, of course, be enjoined from allowing future harassment in the workplace. But that may be the extent of Title VII remedies for this plaintiff.

Beside these remedies of back pay, reinstatement, injunctive, relief and attorney fees, most of the Federal courts have not construed " equitable relief" much further. Courts have precluded any award of damages for emotional harm resulting from Title VII violaton. This is a major problem for a Title VII litigant in a sexual harassment case, although this kind of relief has been sought under State tort and contract claims and Federal constitutional and statutory cases of action. For example Phillips v. Smalley Maintenance Sevices Inc. plaintiff was awarded under $3,000 in back wages for the Title VII claim, but a jury gave her $10 for common-law battery and $25,000 compensatory damages for a State law claim of invasion of privacy.²²

Thus, the plaintiff who has been sexually harassed and suffered emotional harm must look to state common-law tort remedies and other federal statutes that allow punitive and other damages for emotional harm.

From the French Criminal Code point of view, the victim of sexual harassment has the choice between lodging a simple complaint either at the police station of the workplace or before the French Court (Tribunal de Grande Instance).

If the victim compiles a file with relevant exhibits, such as letters, presents, witnesses, she may directly file a complaint before the "Tribunal Correctionnel", with the risk of a counterclaim for defamation by the defendant.

Finally, the victim may file a complaint by constituting themselves as the civil party before the chief magistrate. However, this procedure is very expensive.

Under the French Labor Code, the victim of a termination of a contract due to sexual harassment may file a complaint before the "Tribunal des Prudhommes" for reparation.

In the U.S.: at the Federal level, the plaintiff can either take action personally or be helped by a person aggrieved or a member of the EEOC. Whenever a charge is filed on the basis of an unlawful employment practice, the EEOC serves a charge on the employer and makes an investigation thereof. If the Commission determines that there is no reasonable cause, it dismisses the charge. On the contrary, if there is reasonable cause, the Commission tries to reconcile the parties. If the Commission fails, it may bring a civil action against the employer. ²³

Sexual harassment in the workplace, as a unique and distinct offense, is now recognized in France and in the United States.

However, these two countries have dealt with the problem very differently because of their historical, sociological, and cultural background.

Thus, in France only quid pro quo harassment is acknowledged, whereas the U.S. has expanded the offense to the hostile work environment harassment.

Common law concerning the problem is much more important in the United States, than in France. This results from the fact that the admission of sexual harassment as a problem of society is very recent in the European country.

The French legislature has, however, expressly used the term of sexual harassment, which is not the case in the United States.

In both countries, the reparation that the victim can expect is pecuniary. However in the United States the amounts granted are considerably higher.

France does not have an equivalent of the EEOC. Thus, a victim of sexual harassment in France is left on their own to deal with the problem.

France has still a long way to go to attain the U.S. level of protection against sexual harassment. This is due to the European mentality, which is slowly changing and accepting more and more that sexual harassment has nothing to do with looks, but with power. The victims of sexual harassment have to speak out, which is very difficult in France because of the absence of specialized Commissions who can represent the victims.

Furthermore, men and women should accept that values are changing and that they have to adapt to the world they live in. Sexual harassment is a part of this evolutionary process. It is, of course, not acceptable and hopefully will disappear with the redefinition of the roles of male and female in our society, and more tolerance of people's different behaviors. In the work place, every person should have the position they merit within the enterprise and sexual harassment should not be tolerated.

ABOUT THE AUTHOR Caroline Goette is a Swiss lawyer visiting the law firm of Spencer & Klein, Miami, Florida