Naturally employers are its first target

April 16, 2012 5:56 AM
Naturally employers are its first target

If this is already done, the high authority against discrimination and for equality (Halde) will soon become the nightmare of the companies. The dump, is indeed, best known for his way of tracking the denial of discriminatory hiring or for its tests carried out at the entrance to nightclubs, but its scope goes beyond. It extends to all discriminatory actions that may be a natural or legal person. Naturally, employers are its first target.

Under the terms of the Act that created (l. No. 2004 - 1486 on December 30, 2004), the dump is "an independent administrative authority". Any person who considers himself victim of discrimination contrary to French law, or to an international instrument to which the France has acceded (Treaty, Charter...), may refer to the. It then begins gathering information and when it considered to be in the presence of a discriminatory practice, it can take two types of action, either on the registry of the repression, or on the regulation. It is the latter that concerns us today.

The regulation seeks friendly actions to correct the excesses of offenders who are not necessarily bad faith. In this spirit, the Halde can make recommendations or impose a mediation.

Easygoing outside, these regulatory actions are very dissuasive: where a person, a company, an association is the subject of a recommendation from the dump, it has to account for the suites that is within a period fixed by the high authority itself and, when it deems it necessary, may make its recommendation public by publishing it in the "Official Journal". We can easily imagine that no company has desire to see his name publicly associated with discrimination recognized by the dump.

Witness for the prosecution

But the recommendation is not a satisfactory weapon when the dump occurs while the victim is already on trial against his employer. It may act as prosecution witness.

Of the employer point of view, the dump has a strong capacity to harm and the bad news for employers, as for the employees whose file is denied, is that this organization is beyond the reach of challenges, just to learn it by three judgments dated July 13, 2007.

First case, that of a publishing house charged by one of its employees of "moral harassment to racist connotation". Having heard the case, the dump ranks alongside the employee and employer recommends several measures: training of the personnel management and the Department human resources on moral harassment and the right to work, set up an alert procedure promoting the expression of the employees and the amicable settlement of the conflict. It also sends a letter to the employee informing him that it can seize the labor to which cases it will be a pleasure, on invitation of the contracting party to submit its observations.

The second case is that of a SARL in litigation with a former employee. The dump has prompted the latter to come to the bar to submit its observations, that the employer regarded as ultra vires.

Latter case, finally: it is an employee, the coup, who complains. She grabbed the dump of a claim and it refused to hear the record.

Since the dump is an administrative authority, the procedure to challenge its decisions is to present to the Council of State an application for annulment, for excess of power, of the action taken. The Council of State rejected three motions: a recommendation, as long as it is not made public, is not an "administrative decision" likely to be attacked for excess of power. The same applies when it comes to suggest an employee might invite the dump to provide its comments to the labor. So in even when, after investigation, the dump refuses to respond to a request.

The dump is thus vested with powers of great efficiency: what Labor Council will refuse to follow if it supports the record of an employee The danger of a mistaken view of the situation, of course, is possible and there is no way to protect themselves.