Introduction

Scope and definition of the matter

1What is striking with the concept of tolerance is that, even though everyone has his understanding of it, it remains hard to find a clear-cut, overarching definition. A preliminary attempt to define tolerance gave rise to a fair range of meanings.

2First, tolerance has historically appeared as a basis of toleration acts (e.g. Edit de Nantes, 1598) and, subsequently an idea of religious toleration1.

3Second, tolerance may refer to either the ability to bear pain or hardship, or a physiological capacity of the body, or an organ.

4Finally, tolerance means acceptance of the beliefs, beyond mere religion, personal characteristics or practices different from one’s own. Tolerance is, thus, a way of thinking or behaving. This definition does not lead to a specific legal concept.

5Yet, despite the lack of juridical status as such, tolerance and law are intimately intertwined. A thorough analysis of the interplay between tolerance and law can then contribute to shedding light on the concept of tolerance itself.

6I choose to base my analysis on looking more specifically at the workplace. Is there a better field of study than the workplace itself? The workplace is where most discrimination disputes and intolerant behaviour occur2 and where the rights of other parties are at stake. The workplace is the locus where the rule of law repeatedly challenges, and is challenged by, our tolerance. Hence my choice is to unravel how tolerance is being implemented in French labour law.

Issue

7In this endeavour, two difficulties arise immediately. On the one hand, the very practice of tolerance requires the very existence of the converse: intolerance. On the other hand, tolerance itself has no juridical status as such.

8On the one hand, there is a serious issue as to whether tolerance reaches boundaries when confronted with intolerant opponents. It should be impossible for someone to tolerate what rejects tolerance without relying herself or himself on intolerance. How tolerantly may one treat an opponent of tolerance? And where do we draw the line between what is tolerable and what is not? True tolerance eventually finishes with intolerance, simply because “There can be no inclusion without exclusion3.”

9This paradox may explain why, on the other hand, tolerance itself has no juridical status. To demonstrate this, it is necessary to investigate whether, and how, the concept of tolerance is being mobilised in the French labour law. This in turn requires an understanding of how the French labour law has developed over time. International and European law, that is, Treaties, Charters, Conventions, France has signed, apply directly in domestic law4 and sometimes even between citizens, employees, and private undertakings: some of their clauses may indeed have a horizontal direct effect allowing a citizen to uphold the international or European provision against another citizen before a domestic judge. That explains how French labour law has been forged. Therefore, its study necessitates having a look at a few International and European rules with a binding effect.

10To make it short, in International law5 or European law6, tolerance is merely an ideal, maybe a value, and more certainly a purpose, but in no way, it provides a normative ground nor a statutory provision.

11In domestic law, the French Constitution begins with ensuring a secular Republic and proclaims “the equality of all citizens before the law, without distinction of origin, race or religion”, with respect to all beliefs7. However, nothing refers to tolerance as such. In a similar vein, no occurrence of the noun tolerance in the French Employment Code is to be found (except in the meaning of an acceptable threshold for a quantity of a molecule for instance).

12The search for an equilibrium between, on the one hand, the implementation of tolerance that mechanically calls for some definition of what cannot be tolerated, and on the other hand, the lack of a formal legal concept of tolerance, makes the very practice of tolerance in labour law extremely challenging. It is the practice of tolerance which can be regulated in some fashion, but not tolerance as such.

13Exclusion of an undesirable behaviour appears as the true cornerstone of tolerance and encompasses both prohibition of discrimination, which scope covers personal characteristics to freedoms, (I) and protection of freedom of expression, as a stand-alone right, in the workplace (II).

I. Prohibition of discrimination in the workplace

14Discrimination in the workplace is strictly forbidden at every stage of the employment relationship: from the selection8, the recruitment, and the execution of the employment contract, to its transfer or its closure. Indeed, “tolerance only begins where discrimination ends9.” Prohibition of discrimination is enshrined in many texts, in International law10, in European law11, and in domestic law12, by the application of the international and European provisions with horizontal direct effect and the transposition avec the European directives, prohibition of discrimination prevails. French labour law, based on the International and European rule of law, bans intolerant behaviours in the workplace (A). The complex interplay between tolerance and law appears in the derogations (B) in an attempt to reach the balance between the interests and the rights which are at stake in the workplace.

A/ The banning of intolerant behaviour

1. Definition of the concept of discrimination

15“ When one person is less favourably treated than another is, has been or would be treated in a comparable situation, on any of the grounds recognised as illegal ”, listed in the French Employment Code, at article L. 1132-1, prohibited direct discrimination shall be taken to occur. For instance, the willingness of an employer to take account of a customer’s wish no longer to have the employer’s services provided by a worker who wears an Islamic headscarf could constitute direct discrimination13.

16The prohibition of discrimination in the workplace covers also indirect discrimination. Indirect discrimination occurs when an apparently neutral provision, criterion or practice would put persons, in a situation listed as illegal grounds, at a particular disadvantage compared with other persons. For instance, the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace could constitute indirect discrimination.14

17In French labour law, unlike the EU law, to ascertain discrimination, there is no need to compare the situation of a given employee with that of another individual. The practice based on an illegal ground suffices. Therefore, in French labour law, there cannot be direct or indirect discrimination whatsoever. Rather, French law relies on the list of illegal grounds provided by the French Employment Code (art. L. 1132-1).

2. Illegal grounds

18The series of illegal grounds listed in the French Employment Code covers a large scope of situations. By and large, two categories of grounds are distinguished:

19The first category concerns identifiable, objective or personal characteristics, or “status”, by which persons or groups of persons are distinguishable from one another, inter alia, origin, gender, family situation, pregnancy, disability, age, sexual orientation, economical status, place of residence, name, …

20The second category encompasses freedom: freedom of religion, freedom of thought and belief, protection of the right to organise convention, and freedom of association.

3. Reversal of the burden of proof

21According to the EU rule of law, rules of evidence more favourable to plaintiffs in discrimination cases have been implemented in French labour law. The burden of proof has been eased for the employee who claims to suffer a difference in treatment based on one or several illegal grounds. Thus, French labour law provides that the burden of proof shifts to the respondent when there is a prima facie case of discrimination: when facts leading to presume that there has been direct or indirect discrimination are laid down by the employee, the judge concludes to a prima facie case of discrimination. That conclusion inverts the burden of proof from the plaintiff (the employee) to the respondent (the employer): the employer will have to provide evidence that the difference in treatment does not eventually constitute discrimination.

B / The derogations

1. Genuine and determining occupational requirement

22Not all differences in treatment based on an illegal ground constitute discrimination. A difference in treatment may be justified where a characteristic related to the illegal grounds constitutes a genuine and determining occupational requirement when the objective is legitimate, and the requirement is proportionate. Hence a difference of treatment based on an illegal ground does not constitute discrimination when, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. For instance, the willingness of an employer to take account of a customer’s wish no longer to have the employer’s services provided by a worker who wears an Islamic headscarf cannot be considered a genuine occupational requirement15. Concerning religion, in particular, “it is only in very limited circumstances that a characteristic may constitute a genuine and determining occupational requirement16 ”. On the contrary, the prohibition on wearing a headscarf, including the Islamic headscarf, based on the employer’s occupational risks prevention policy on workers’ health and safety at work, could be considered a genuine occupational requirement.

2. Appropriate, necessary and proportionate provision in the case of indirect discrimination

23When it comes to indirect discrimination only, a difference in treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary. For instance, the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace doesn’t constitute indirect discrimination if it can be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary, that is, proportionate17. An employer’s desire to project an image of neutrality towards both its public and private sector customers could be considered legitimate, notably where the only workers involved are those who come into contact with customers. The ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued consistently and systematically. This internal rule is based on the freedom to conduct a business.

24To weigh the proportionality of the employer’s decision the domestic judge has to take into account the inherent constraints to which the undertaking is subject, and, in the above example, whether it would have been possible for the undertaking to propose a position not involving any visual contact with those customers, instead of dismissing the employee refusing to take the headscarf off. Taking into account the objective justification by a legitimate aim (freedom to conduct a business for instance) and requiring a reasonable relationship of proportionality between the means employed and the aim sought to be realised (a least restrictive measure than the dismissal for instance), can be analysed as the search of a fair balance between the protection of the interests of the community and respect for the rights and freedoms of the individual. This search for balance may be the very core of the concept of tolerance.

25Outside discrimination, the same search for equilibrium can be found in the protection of free speech in the workplace, as a stand-alone right.

II. Freedom of expression in the workplace

26Freedom of expression is seen as a key “raison d’être” in most democratic countries. Freedom of expression is enshrined in many international18, and European19 instruments, with a binding effect in French labour law. Hence, in the workplace, workers have the right to freedom of expression at work, inside the office, as well as outside the office. According to the French labour rule of law, cases raising freedom of expression issues require, either, to warrant the absence of an abuse of right, which could be seen as a limit to tolerance (A), or a balance exercise on the interference by the employer with the freedom of expression (B).

A/ The abuse of rights: a limit to tolerance

27Freedom of expression is bounded as soon as its exercise is considered abusive to some third party. It is only then that the protection of this fundamental right ends.

28The French High Court20 usually holds that:

Unless the employee abuses of the freedom of expression, he enjoys, inside the undertaking and outside, his freedom of expression which could not be limited by any restriction which is not justified by the nature of the task to be performed and proportionate to the aim sought.

29Notwithstanding the above, ruling about the freedom of expression comes down to a case-by-case matter. For example, insulting words used about the employer by an employee on Facebook may be considered not abusive so long as the access to Facebook remained private21. However, recently, in a case, an employee of the « Association Les Œuvres hospitalières françaises de l’Ordre de Malte » published a photograph of him naked, kneeling on a prie-dieu in a church, on Facebook. The association dismissed him on that matter. The rehearing Court considered that the large diffusion on Facebook of this photograph was inappropriate and outrageous and constituted an abuse of the freedom of expression, justifying the dismissal. The High Court didn’t agree and hold that the publication of the photograph, without any offensive, defamatory or outrageous words, didn’t entail an abuse of the freedom of expression22.

30The Court has also held that the use of offensive, defamatory and outrageous terms could constitute an abusive exercise of the freedom of expression in the workplace23. A dismissal for that matter would not be unfair. The withdrawal of the protection of freedom of expression in the situation of abuse of right can be seen as one of the limits of tolerance in the workplace.

31Boundaries of tolerance could also be found in the interference of the rights of others requiring reaching an equilibrium of all rights at stake, by applying the principle of proportionality.

B / The proportionality of the interference

32In domestic law, the freedom of expression is protected by the French Employment Code claiming: “No one may limit personal rights or individual or collective liberties by any restriction which is not justified by the nature of the task to be performed and proportionate to the aim sought24.”A restriction by the employer of the freedom of expression, that is, an “interference”, has, as the text shows, to be justified by the nature of the task, in other words, necessary, and proportionate to the aim pursued. For instance, the general ban on whistling, singing and talking in the workplace would neither be necessary nor proportionate25.

33The analysis of the proportionality of the interference with the freedom of expression requires a balance of the rights in opposition, as though this search led to drawing the line between what can be tolerated and what cannot be.

Conclusion – Reasonable accommodations: tomorrow’s challenge?

34In conclusion, the interplay between tolerance and French labour law is a complex one. The provisions, instruments and mechanisms related to tolerance found in French labour law amount to preventing intolerance in the workplace. Imposing tolerance in the workplace is itself the practice of intolerance, and the constraint to let go against the workers’ inner will is an example of intolerance in action.

35That said, what would a positive action be towards tolerance? Could it refer to the “reasonable accommodations” that require, in Common law, to adapt the workplace to the employee? French labour law is not familiar with “reasonable accommodations”, as is the case with the Common law. Some modifications of the workplace are of course allowed in French labour law, in some very particular situations: disability, pregnancy, or the carrier evolution of a union representative. Yet no general principle requiring adapting the workplace to everyone, unless for safety reasons, is being mentioned.

36However, a closer look at the implementation of tolerance in the workplace reveals that the few “reasonable accommodations” the French labour law ensures, are grounded on the principle of equality. These provisions are based on the principle of equality and are not grounded in the concept of tolerance per se. Wouldn’t the quest for equality be far beyond the scope of tolerance?

Literature

BAYLE Pierre, De la tolérance, [1686], Paris, Honoré Champion, coll. Champion Classiques, 2014.

HABERMAS Jürgen, “Religious Tolerance—The Pacemaker for Cultural Rights”, Philosophy, 2004, 79(1), 5-18. doi:10.1017/S0031819104000026

LOCKE John, A letter concerning toleration, [1689], Paris, Flammarion, 2007.

“Speech at work, None of your business”, The Economist, Feb., 29th 2020.

Sources

• International and European law

Universal Declaration of Human Rights (Paris), 10 December 1948 (art. 26)

International Labour Organisation: Freedom of Association and Protection of the Right to Organise Convention, 1948 (n° 87); Equal Remuneration Convention, 1951 (nr. 100); Discrimination (Employment and Occupation) Convention, 1958 (nr. 111)

International Covenant on Civil and Political Rights, 16 December 1966, (art. 19)

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, (art. 13)

Convention on the Elimination of All Forms of Discrimination against Women (New York), 18 December 1979

• Council of Europe

European Convention on Human Rights and Fundamental Freedoms (Rome), 4 November 1950, (art. 10)

• European Union

Treaty on European Union (consolidated version 2016), OJ C 202, 7.6.2016 (art. 2)

Charter of Fundamental Rights of the European Union (2016), OJ C 202, 7.6.2016, p. 391–407 (art. 11, 21)

Council directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation

Directive 2000/43/EC of 29 June 2000

• Domestic statute law

Constitution of 4 October 1958 (art. 1, 55)

« Déclaration des droits de l’Homme et du citoyen » of 4 August 1789 (art. 10)

Employment Code (esp. art. L. 1121-1; art. L.1132-1 to art. L. 1134-10)

L. n° 2001-1066 du 16 novembre 2001, relative à la lutte contre les discriminations, JORF 17 nov. 2001

L. n° 2002-73 du 17 janvier 2002 de modernisation sociale, JORF 18 janv. 2002

L. n° 2005-102 du 11 février 2005, pour l’égalité des droits et des chances, la participation et la citoyenneté des personnes handicapées, JORF 12 fév. 2005

L n° 2005-843 du 26 juillet 2005, portant diverses mesures de transposition du droit communautaire à la fonction publique, JORF 27 juil. 2005

L. n° 2008-496 du 27 mai 2008 portant diverses dispositions d’adaptation au droit communautaire dans le domaine de la lutte contre les discriminations, JORF 28 mai 2008

D. n° 2008-799 du 20 août 2008, relatif à l’exercice par des associations d’actions en justice nées de la loi n° 2008-496 du 27 mai 2008 portant diverses dispositions d’adaptation au droit communautaire dans le domaine de la lutte contre les discriminations, JORF 22 août 2008

Circulaire:

Circ. DRT 5-83 of 15 March 1983, n° 1242, BOMT n° 83/16

Case-law

• Council of Europe

ECHR, 26 April 2016, Izzettin Dogan and others v. Turkey, nr. 62649/10

EU Case-law:

CJEU, 23 April 2020, C-507/18

CJEU, 14 March 2017, C-188/15, Bougnaoui v Micropole univers

CJEU, 14 March 2017, C-157/15, G4S Secure Solutions

CJEU 22 November 2005, C-144/04, Mangold

• French case-law:

Cass. soc., 23 June 2021, nr. 19-21.651

Cass. soc., 12 September 2018, nr. 16-11.690

Cass. soc., 23 September 2015, nr. 14-14.021

Cass. soc., 14 November 2013, nr. 12-10.082

Cass. soc., 3 May 2011, nr. 10-14.104