On 4 May 2012, the French Constitutional Council has declared non-compliant with the Declaration of Human Rights of 1789, Article 222-33 of the Penal Code which punishes a year in prison and € 15,000 for fine 'to harass others in order to obtain sexual favors. "
Accordingly, Article 222-33 of the Penal Code was repealed and a new Act No. 2012-954 was passed August 6, 2012. It relates to sexual harassment and discrimination related to sexual harassment.
1. A new definition of sexual harassment:
The old definition of sexual harassment is as follows:
"To harass others in order to obtain favors of a sexual nature"
The new Act introduces a new much more precise definition: "Sexual harassment is the imposition of a person, repeatedly remarks or behavior of a sexual nature that is impairing its dignity because of their character or degrading humiliating, or create a situation against her intimidating, hostile or offensive ";
The Act also specifies that "sexual harassment is considered the fact that, even without repeated use of any form of severe pressure in order to obtain real or apparent act of a sexual nature, it is sought to benefit of the perpetrator or a third party. "
The notion of "sexual behavior" was clarified: it is about, gestures, mailings or objects, attitudes ... Now it is no longer required that the conduct is for the purpose of sexual favors, or conduct that have a directly or explicitly sexual. For example, the behavior can be characterized by overtly sexist remarks or behavior, ribald, obscene, such as words or writings constituting repeated provocations, insults or defamation, even non-public, committed because of gender or orientation or gender identity of the victim.
Finally, to be characterized, sexual harassment must affect the dignity of the victim or create a situation intimidating, hostile or offensive.
It is obvious that the victim should not be consenting to all of these actions, which must be imposed.
2. The new Act is included in the Labour Code and the status of public
Article L. 1153-1 of the Labour Code and Article 6 ter of the Law n ° 83-634 of 13 July 1983 concerning the rights and obligations of officials are amended as follows:
"No employee (no official) must undergo facts:
- Sexual harassment is constituted by words or conduct of a sexual nature that is repeated undermine his dignity because of their degrading or humiliating character, or create a situation against her intimidating, hostile or offensive;
- Is similar to sexual harassment, consisting of all forms of severe pressure, even if not repeatedly exercised in actual or apparent authority to obtain an act of a sexual nature, that it is looking in favor of the perpetrator or in favor of a third party. '
The employer has an obligation to prevent sexual harassment and to view the article 222-33 of the Penal Code on sexual harassment in the workplace, as well as the premises or the premises where the door is the hiring.
The occupational physician should advise the employer on the measures to prevent sexual harassment.
The labor inspector can see the offense of sexual harassment.
Staff representatives may exercise their right of alert.
3. The Act also covers discrimination
Article 225-1-1 of the Penal Code states: "Discrimination comprises any distinction between people because they have suffered or refused to submit to acts of sexual harassment as defined in Article 222-33 or testified such facts, including, in the case I mentioned in the same article, if the words or behavior were not repeated. '
Thus, discrimination concerns:
- Victims of sexual harassment, whether suffered or refused to submit to such acts;
- People who testified to these facts.
Discrimination is then:
- To refuse the provision of a good or service;
- Impede the normal exercise of any economic activity;
- To refuse to hire, to sanction or dismiss a person;
- To make the provision of a good or service to a condition based on sexual harassment;
- To make a job offer, a request for internship or training period to a condition based on sexual harassment;
- To refuse to accept a person for an internship for the same reasons.
And a custodian of public order, discrimination includes:
- To refuse the benefit of a right granted by law, such as the provision of social benefits;
- Impede the normal exercise of an activity;
4. Penalties are aggravated
Harassment is punishable by two years imprisonment and a fine of 30,000 euros in case of aggravating circumstances, the penalty is increased to three years in prison and 45,000 euros fine.
Discrimination is punishable by three years imprisonment and a € 45,000 fine, the penalty may be increased in certain circumstances to five years imprisonment and a € 75,000 fine, especially when such acts are committed by a person holding public authority.