An ill-conceived bill

BILLS NO. 1640 AND 274 OF THE 16^TH LEGISLATURE AIMED AT RECOGNISING AND PUNISHING HAIR DISCRIMINATION ADOPTED BY THE NATIONAL ASSEMBLY ON 28 MARCH 2024

In the tumult of debates on equal opportunities, our politicians are currently debating a hair-raising issue: hair discrimination.

While this proposed law tackles very real problems, we might ask ourselves whether it is really necessary, in the light of existing legislation.

But after all, perhaps this proposed law is the last “comb” needed to “untangle” prejudice….

CONCRETE CASES OF CAPILLARY DISCRIMINATION :

Judges have already had to “pull their hair out” over specific cases.

Thus :

• An employee has applied for an internal position. He was offered the job on condition that he cut his hair. Having refused, he was not promoted. The Court ruled that the employer was to blame for the termination, considering that this constituted discrimination based on physical appearance (CA Rennes, 12 October 2011, no. 10/00985).
• An employee signed a contractual termination agreement and subsequently indicated that her consent had been vitiated. She states that she signed the termination agreement in a context of moral harassment, with her superior criticising her ‘gothic’ style and her ‘blue hair’. The Court of Appeal upheld the nullity of the termination on the basis of the “disparaging remarks” (CA Riom, 26 October 2021, no. 19/00451).
• An employee’s dismissal for gross misconduct, based on acts of discrimination and harassment by an employee towards her subordinates, was upheld by the lower courts. In fact, she made racist and discriminatory comments, including remarks such as “why is your hair frizzy?“ (CA Aix-en-Provence, 3 December 2021, no. 18/05847).
• According to the Cour de cassation, prohibiting a steward from wearing African braids constitutes discrimination based on physical appearance in relation to gender (Cass. soc. 23 November 2022, no. 21-14.060)

Furthermore, according to studies cited by Olivier Serva, the Member of Parliament who introduced the bill (in particular the CROWN 2023 study co-conducted by Dove & LinkedIn) :

• Textured hair is 2.5 times more likely to be perceived as less professional.
• Mixed-race/black women with textured hair are twice as likely to experience microaggressions in the workplace than mixed-race/black women with straight hair.
• 2 out of 3 mixed-race/black women change the texture of their hair for professional maintenance, and 41% of them straighten their curly hair.
• 31% of blonde women have dyed their hair brown to appear more intelligent.
• People with red hair suffer harassment at work because of the colour of their hair.
• 30% of bald men are less likely to progress in a company.

So there is a tangible reality.

WHAT THE BILL PROPOSES :

The proposed law aims to amend :

• The article of the Labour Code which lists the prohibited grounds for discrimination (c. trav. art. L. 1132-1)
• The article of the Penal Code that punishes discrimination with 3 years’ imprisonment and a €45,000 fine (c. pé art. 225-1)
• The law containing various provisions for adapting to Community law in the field of anti-discrimination (Law 2008-496 of 27 May 2008, art. 1).

In the list of grounds for discrimination, it is proposed to insert, after the word
“physical”, “particularly capillary”.

It should be noted that an amendment removed from the original text the idea of adding the words “the cut, colour, length or texture of their hair”.

IS THIS REALLY NECESSARY – LEGALLY SPEAKING?

The need for such a law remains unclear. Although its promulgation may have symbolic or even political significance, it does not appear to be legally necessary.

It’s a bit like looking for a solution to a problem that doesn’t really exist.

In fact, as we have just seen, judges have already been able to punish hair discrimination on the basis of the existing legal arsenal.

Current legislation already prohibits any physical discrimination or discrimination based on actual or assumed membership or non-membership of an ethnic group, nation or so-called race.

Why indicate “physical discrimination, particularly hair discrimination” and not other cases? Starting to give examples could prove limitless: what about discrimination against heels, bad shaves, badly trimmed beards?

The Labour Code already prohibits discrimination based on physical appearance, even if discrimination based on hair colour is not explicitly mentioned.

Ultimately, if this law seems to lack legal impact, its importance could be more political…

The bill must now be examined (untangled?) by the Senate.