Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Latraverse, Sophie
• Pages: 81-82

81

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In France, positive action is permitted in national law in respect of di sability and age.

The French legal framework does not integrate a general derogatory provision authorisi ng

positive action measures.

French positive action, as conceived by the jurisprudence of the Conseil d’Etat is based on

apparently neutral and general grounds of distinction such as sex, disability, age, territorial

links to designated geographical areas or socio-economic conside rations.289

In its opening provision, the Law No. 2005-102 on Disa bility affirms t he right of disabled

people to the support of all members of the nation and, in Article 11, the right to

compensation for disability (Article L114-1 1 CSW).

Article 1133-3 LC states that positive action measures taken to promote equal

opportunities for the benefit of disabled people are not to be construed as discrimi nation.

Moreover, Article L1133-2 LC allows for differential treatment on the ground of age that is

objectively and reasonably justified by a legitimate aim, in order to ma intain health,

support professional integration or maintain employment of workers, if the means to

pursue these objectives are reasonable and necessary. However, in 2017, the Government

abrogated the decree establishin g a positive action scheme to support employment of

workers over the age of 50.290

In addition, there are a number of integration programmes for foreign nationals in France.

b) Quotas in employment for people with disabilities

In France, national law provides for a quota for the employment of people with disabilities.

The Law on the Employment of Disabled Persons No. 87-157 instituted a quota system.291

Despite the cost to employers of sanctions related to the failure to meet their obligation

to employ a quota of disabled employees, the Court of Cassation decided in May 2003 that

disabled workers were not obliged to disclose their status to their emplo yer.292

The Law No. 2005-102 on Disability creates a fund for the integration of registered

disabled people into both private and public employment, as well as providing for sanctions

if the employment quota of 6 % imposed on all employers, set out in the law, is not

respected (Article 36 creating Article 5212-12 LC). Article 36 of the law maintains the

possibility of substituting complianc e with the obligation to emplo y a minimum quota of

6 % of disabled salaried workers provided by Article 5212-2 LC by making a financial

contribution to the above-mentioned funds (k nown as the AGEFIPH for the private sector

and FIDHFP for the public sector), which finances the integration of disa bled workers and

public servants. The amount is fixed by Decree no. 2012-943 of 1 August 2012 and starts

at 400 times the minimum wage per missing employee for a bu siness of 20 to 199

employees to a maximum of 1 500 times the minimum wage per employee for businesses

289 Conseil d’Etat (1996), ‘Public report No. 48’, pp. 86 and 91.

290 Decree No. 2009-560 of 20 May 2009 amended by Executive Order No. 2017-1387 of 22 September 2017

(Article 9), available at:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000020639752&dateTexte=20190225.

291 Law No. 87-517 of 10 July 1987 to promote the employment of disabled people (Loi No. 87-517 du 10 juillet

1987 en faveur de l'emploi des travailleurs handicaps), available at:

http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000512481.

292 Court of Cassation, social chamber, No. 1083, 06 May 2003, Revue de jurisprudence Sociale 8-9/03, p. 733.