OD FLASH | Racist remarks made during a CSE-organised meal are part of the professional life of employees, even though they were made outside working hours.

Cass. Soc., 15 mai 2024, n°22-16.287

Under Article L. 1134-1 of the Labour Code, in the event of a dispute on a discriminatory matter, if the employee presents evidence suggesting the existence of direct or indirect discrimination, it is for the defendant to prove that the contested decision is justified by objective factors unrelated to any discrimination, and then for the judge to assess the evidence presented.

In this case, an employee complained that her supervisor had used racist clichés and remarks about her skin colour during a Christmas dinner organised by the works council.

After denouncing the racist remarks made against her by her supervisor, the employee was sent on sick leave for two months. She then applied to the Labour Court for judicial termination of her contract, which she hoped would have the effect of invalidating her dismissal on the grounds that it was tainted by moral harassment and racial discrimination.

In support of her claim, the employee submitted the testimony of several co-workers contained in the minutes of the investigation conducted by the CHSCT.

Despite this evidence, the employee’s appeal was dismissed, as the Court of Appeal (CA Versailles 27 January 2022, no. 20/01577) considered that the comments were made by the line manager in a very specific context (organised not by the employer but by the works council), outside the company and during working hours. As a result, the facts could not give rise to a presumption of discrimination, as they were independent of the employee’s professional life and the discussion was of a personal nature.

This reasoning was overturned by the Court of Cassation, which held that the racist remarks about the colour of the employee’s skin, made (i) by the employee’s superior, (ii) during a meal organised by the works council and (iii) in the presence of her colleagues, were, through a combination of these elements, part of the employee’s professional life, even if outside her working hours. Thus, the Court of Cassation, after considering that the facts presented were facts relating to the employee’s professional life, found harassment and discrimination, the facts being sufficiently conclusive to suggest discrimination. The court stated: “The racist remarks made by her superior during a Christmas dinner with colleagues organised by the Social and Economic Committee fall within the scope of the employee’s professional life and constitute evidence of discrimination on grounds of origin”.