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Condemn BNP Paribas for discrimination: lessons and prospects?

May 5, 2010 GIE BNP Paribas was sentenced by the Court of Appeal of Paris for discrimination. Being a firm yet stamped "Swiss variety" opposed to a graduate of HEC, the decision is yours. It illustrates how the risk of being accused of discrimination becomes ubiquitous for the company. What lessons can we learn from this remarkable stop teaching? He opens up new prospects?

1. Rules of evidence in favor of the plaintiff

As for harassment, the burden of proof is especially designed to limit the task of the applicant.

The approach of the Court of Appeals articulated in two stages and in turn charged to the employee and the employer.

First, the employee who allegedly injured by a discriminatory measure shall submit to the judge the facts may characterize a violation of the principle of equal treatment.

then it is incumbent upon the employer to establish that the disparity observed situation is justified by objective factors unrelated to discrimination.

2. Assessment of damage to career stagnation and rule called "the triangle"

assessment of the damage resulting from the combination of heads. By combining each other, they can lead to formidable amounts for the employer.

First, discrimination gives rise to a self-repair.

In this case, the prejudice is rooted in the stagnation of the professional development of the salaried and wage discrimination against male colleagues for the plaintiff, as she graduates from HEC.

It is typically calculated according to the rule known as the triangle, using the formula: (difference current salary x number of years of discrimination / 2) + influence retirement. This simple method is not necessarily devoid of common sense.

The moral damage is assessed by the supreme court, which is a way to recognize the essentially subjective amount withheld.

Second, compensation must be completed once the discrimination was accompanied by a breach of employment contract due to the employer, for example when taking an act by the employee. The employer is then ordered to pay compensation including legal dismissal and damages for dismissals without real and serious.

3. Decisive importance of the panels and the statistical rigor

in discrimination, it is essentially through the use of panels that each party submits its arguments.

And as the saying goes, the statistic is still the third form of lying.

So the delicate topic of the representativity of the statistical panels that the parties will oppose.

In this case, the Court of Appeal dismissed The panel of BNP Paribas, noting: "It has obviously been chosen for the sake of argument" and "he has no employee graduated from HEC.

Ultimately, the statistical rigor of the parties that determines the outcome of this category of litigation.

4. Intervention HALDE collective scope of the dispute and prospects

HALDE (High Authority against Discrimination and for Equality) was seized in the course of proceedings by the employee. It comes, therefore, in the proceedings and the Court of Appeal has resumed most of its conclusions that:

- "slowing the employee's career and the challenges she faced ... the result of unequal treatment based on sex, pregnancy and family status ";

-" BNP Paribas has not justified its management ... by objective factors unrelated to any proportionate discrimination;

- the employee "has been of combined direct and indirect discrimination in relation to his reinstatement, his career development and remuneration. "

The role of the High Authority is particularly important. She has thrown its weight behind the employee, at the risk of undermining the fairness of the trial.

Furthermore, in his expert report, it states "for all the core businesses of the company, women are paid less than their male colleague with the same degree, a date comparable and a common working environment. "

Undoubtedly, this finding is likely to give a collective dimension to an individual case at the outset. It may therefore be the starting point of a succession of disputes based on the same cause.

The risk of contagion appears to be a collective dimension inherent in the litigation of discrimination.

no doubt that companies will increase their vigilance in this area. And that employees will choose more and more frequently in the field of discrimination to defend their rights.

The conviction of a company as iconic as BNP Paribas is likely to amplify this movement. It is also necessary that employees have the courage to begin a long trial while exposing himself to retaliation by companies in their professional field.

But Mrs. "Smith" does not belong to the elite graduates of HEC

... Except that the unions seized on the topic, the field of non-law, so dear to the Dean Carbonnier, still bright future ahead of him!


Michel PASOTTI - Lawyer of Paris - May 24, 2010