OD FLASH | The mere lack of individual promotion of a staff representative is not sufficient to suggest the existence of discrimination

Supreme Court, Civil, Social Chamber, March 26, 2025, no. 23-18.864

In this case, an employee involved in trade union mandates since 1982 claims to have suffered discrimination due to his union membership. He argues that he did not receive a professional promotion between 2005 and 2022, unlike other employees during the same period. He files a claim with the labor court and requests a reassignment in the classification grid as well as damages for the professional and career harm he believes he suffered because of discrimination.

The Court of Appeal, in its judgment of June 1, 2023 (no. 21/01928), grants the employee’s claims, considering that the employee indeed suffered discrimination based on his union affiliation. The Court of Appeal primarily relied on the absence of individual promotions between 2005 and 2022, while observing that other employees were promoted during this period.

The company files an appeal to the Supreme Court against this decision, arguing that the absence of professional advancement over several years is not enough to establish the existence of union-based discrimination. According to the employer, such a conclusion can only be made if the employee is compared with other employees in a comparable situation, i.e., those hired at the same time and possessing equivalent qualifications.

The Supreme Court, based on Articles L. 1132-1 and L. 1134-1 of the French Labor Code, overturns the decision of the Pau Court of Appeal, on the grounds that the latter should have examined whether the employee was comparing himself to other employees who were hired under identical conditions regarding qualifications and at a similar date.

On this occasion, the Court reiterates the principles from the French Labor Code governing evidence in cases of discrimination. According to these principles, it is initially the responsibility of the employee to present factual elements suggesting the existence of direct or indirect discrimination. In the second step, it is then the employer’s burden to prove that the decision was justified by objective elements unrelated to any discrimination.

The Court also recalls its case law regarding the method of comparison in career progression, which must be done with other employees hired under identical conditions regarding qualifications and at a similar date (Supreme Court October 24, 2012, no. 11-12.295; Supreme Court November 7, 2018, no. 16-20.759). Thus, the mere lack of individual promotion, even over a long period, is not sufficient to suggest the existence of union-based discrimination. In summary, this ruling of the Supreme Court reminds that discrimination must be demonstrated through an appropriate comparison with employees placed in similar and therefore comparable situations.