Addressing Workplace Discrimination and Harassment: Essential Employer Responsibilities
In recent years, there has been a growing movement to speak out against discrimination and harassment in the workplace. This issue, unfortunately pervasive across various sectors, has prompted the Defender of Rights in France to issue a series of 49 key recommendations in a framework-decision of February 5th, 2025, detailing how employers should conduct internal investigations when faced with such incidents.
Contextual Background
The call for action comes in a landscape where talk of these serious behaviors has become more accepted, yet the legal framework remains vague. While the Labor Code provides fundamental principles, it lacks clearly defined guidelines, which can leave both employers and employees uncertain when real incidents arise.
Core Principles for Employers
The primary obligation for employers is to protect the physical and mental health of their employees. This commitment includes:
- Prohibition and Prevention: The workplace must be free from acts of harassment and discrimination. Employers are required to implement preventive measures and communicate clearly about these issues, embedding them within workplace regulations.
- Immediate Response: Upon learning of any harassment or discrimination, employers must take action to investigate allegations, assess their validity, and if needed, implement corrective measures.
An important piece of legislation, a national interprofessional agreement of July 23, 2010, on moral harassment and workplace violence, emphasizes the need for employers to have robust procedures in place to address complaints promptly.
The Necessity of Internal Investigations
When allegations arise, internal investigations are not merely a best practice; they can be a legal necessity under specific circumstances, such as a serious and imminent danger to employees. In 2019, case law has reinforced that failure to conduct an internal investigation, even if harassment is not ultimately found, can violate the obligation to prevent risks at work.
However, a recent ruling of June 2024 leads to consider that while internal investigations are not always mandatory, they remain one of the most effective means for an employer to fulfill their health and safety obligations.
Challenges in Internal Investigations
Despite this legal landscape, there is significant ambiguity surrounding the execution of internal investigations. There is a clear need for standardized practices, as there currently exists great variability in how investigations are conducted across different organizations.
As practitioners, we observe two main issues:
- The diversity of practices leads to a lack of trust among victims and witnesses, resulting in many situations that warrant reporting going unreported.
- The variability in how investigations are handled can undermine the credibility and effectiveness of response; Ultimately, employers’ responsibility is at stake.
Significance of the Defender’s Recommendations
The recommendations from the Defender of Rights serve as an essential guide for employers to navigate this complex landscape. While initiating an internal investigation does not absolve an employer of responsibility, following these guidelines will help ensure compliance with best practices.
Employers with already established processes would likely find many of these recommendations to align with existing strategies. However, minor yet vital details, such as acknowledging the receipt of complaints, can significantly improve communication and trust.
Moreover, recommendations to ensure timely investigations, multidisciplinary teams, and the possibility of externalizing investigations when necessary add robustness to the procedures.
Conclusion: Embracing the Change
Employers are encouraged to view these recommendations not as burdens but as opportunities to enhance workplace culture, effectively tackle discrimination and harassment, and protect all employees’ rights. For those without processes in place, these guidelines provide a comprehensive framework, while established organizations should consider aligning their practices with these recommendations to ensure compliance and promote a safe working environment.
By committing to these practices, employers can foster an environment where all employees feel empowered to speak up and have their grievances addressed justly and efficiently.
Framework Decision 2025-019 of 5 February 2025 on general recommendations to public and private employers concerning internal investigations following reports of discrimination