Comparing the American concept of hostile work environment harassment with French "harcelement moral"

Résumé du document

With the generalization of office work all through the second half of the 20th century, harassment in the workplace has become a critical issue. In France, for example, according to an Ipsos study, 30% of workers claim that they have been subject to moral harassment while 37% claim they have witnessed a colleague being subjected to moral harassment. With the rise of occurrences of workplace harassment, in France but also in the United States and on a worldwide scale, employment law in various jurisdictions has naturally evolved in order to respond to the importance of this phenomenon, which often bears devastating consequences on the mental and physical health of the victims.

In France, the law has created the legal category of "moral harassment", whose equivalent under US federal law might be regarded as the concept of "hostile work environment harassment". However, these two concepts do not overlap perfectly, and the particular legal and historical evolutions of France and of the United States partly explain the differences between moral harassment and hostile work environment harassment. These two notions differ in their scope but also in the burden of proof associated to each of them. Similarly, each of the two notions creates particularities when it comes to litigation.

Extraits

[...] This differs from the United States notion of hostile work environment harassment, since, as previously mentioned, a single instance of harassment or an isolated incident can constitute harassment if it is sufficiently severe (although, in general, frequent acts are more likely to be considered as harassment than isolated acts). Finally, French law provides for an obligation of the employer to protect his or her employees. This is somewhat comparable to the US federal law obligation of the employer to educate his or her employees in order to avoid situations of harassment, mentioned previously. However, one is a duty to protect while the other is a duty to educate paired with vicarious liability. [...]

[...] Courts have further set the boundaries of the concept of hostile work environment harassment by ruling whether different cases could fall under that category or not. For example, it has been held that a single action can be enough to establish sexual harassment if it is severe enough, though repeated claims tend to create a stronger case for hostile work environment harassment. This underlines the idea that the court must look at the overall consequences of all the actions and incidents on the work environment. [...]

[...] If the claimant fails to bring forward such elements, the judge cannot find harassment. This was established by a Conseil d'Etat decision of 8 March 2010 (no. 335543). In conclusion, though they are the result of distinct, particular historical evolutions, the French notion of moral harassment and the US law notion of hostile work environment harassment are highly comparable. However, there remain significant differences in scope between the notions, as well as differences in the burden of proof borne by the plaintiff. [...]

[...] This requirement means that the plaintiff must have regarded the work environment as hostile enough to alter the terms and conditions of employment, and that a reasonable person would have reached the same conclusion. The requirement of severity includes frequency as well as assessing whether the conduct constituted physical threat, offense or humiliation and whether it interfered unreasonably with the work performance of the plaintiff. Similarly, for hostile work environment sexual harassment the standard of proof under US federal law is the “reasonable woman perspective”. The standard for asserting whether a hostile work environment was in fact created is the perspective of a reasonable victim of the same sex as the plaintiff. [...]

[...] Under US federal law, a hostile work environment can be found to exist whenever an employee is harassed at work, and afraid of going to work because of the oppressive atmosphere created by the harasser. Hostile work environment harassment can also be found when a manager acts purposely to force an employee into quitting their job. This is a way for the manager to avoid having to terminate the employee, which would be costlier than the employee quitting of their own motion. [...]