Comparing the American concept of hostile work environment harassment with French “harcèlement moral”
by Marie Baleo
With the generalization of office work in the second half of the 20th century, harassment in the workplace has become a critical issue affecting many members of the workforce worldwide: according to a global poll conducted by Monster, the job search engine, out of a sample of 16,517 persons asked whether they had ever been bullied at work, 64% indicated that they had been “bullied, either physically hurt, driven to tears”. In France, according to a 2000 study conducted by Ipsos , 30% of workers claim to have been subjected to harassment.
With the global rise of workplace harassment, which has been defined by social scientists as “irrational repeated behavior towards an employee or group of employees, which represents a health and security risk”, employment law in various countries has evolved in order to better address this phenomenon, which often bears devastating consequences on the mental and physical health of its victims, leading to depression, anxiety, and sometimes suicide. In France, legislators have created the legal concept of “moral harassment” (“harcèlement moral”) in the workplace, whose equivalent under US federal law appears to be the concept of “hostile work environment harassment”. However, these two concepts do not overlap completely: let’s take a look at the differences between the French and American legal definitions of harassment in the workplace.
The genesis of the “hostile work environment harassment” and “moral harassment”
In the United States, the general legal notion of harassment appeared with Catharine MacKinnon’s Sexual Harassment of Working Women: A Case of Sex Discrimination. Published in 1979, this report was the first to define sexual harassment and inspired guidelines issued by the Equal Employment Opportunities Commission (EEOC) the following year, prohibiting hostile work environment harassment. In 1986, the landmark Supreme Court case Meritor Savings Bank v. Vinson further defined the notion of hostile work environment by establishing that sex discrimination can be based on a hostile work environment. This means that companies became liable for failing to implement anti-harassment policies. This paved the way for women-led class actions against employers which had failed to prevent a hostile work environment, beginning in 1991.
In contrast, in France, the notion of moral harassment only appeared fairly recently, with the Social Modernization Law of January 2002 (Loi de modernisation sociale de 2002), which introduced provisions on moral harassment in the Labor Code and Criminal Code. However, this was only the official recognition of something which French courts were already used to relying on heavily, and which the French public knew of very well. As early as 1960, the highest civil jurisdiction in France, the Cour de Cassation, awarded damages against IBM France after an employee was terminated following an unexplained decrease in her professional responsibilities. Similarly, in 1973, the Cour de Cassation ruled in favor of an employee whose supervisor had forced them to clean the floors of a warehouse, and declared this to constitute psychological harassment.
In 1998, Marie-France Hirigoyen, a French psychiatrist, published a landmark essay, which can be directly credited for framing the notion of moral harassment and for educating the public about harassment. She defined moral harassment as “any abusive conduct whether by words, looks, gestures, or in writing-that [through repetition or systematization] infringes upon the personality, the dignity, or the physical or psychical integrity of a person; also, behavior that endangers the employment of said person or degrades the climate of the workplace.” The harasser may be a superior, a subordinate or a coworker, but not an external individual (a client or a customer).
The publication of Hirigoyen’s book caused multiple courts to start mentioning the notion of moral harassment more frequently. For example, in 1999, the Paris Labor Court awarded damages to a hotel employee whose supervisor routinely criticized her before coworkers and clients and constantly changed her working hours. Severely depressed, the employee had to take a two-year sick leave. The Labor Court established a causal link between her depression and what it then described as acts of moral harassment.
In contrast, in the United States, the notion has been a legal category since the early 1980s and the EEOC guidelines I mentioned. Hostile work environment harassment violates several legal texts (Title VII of the Civil Rights Act of 1964, as well as the ADA and the Age Discrimination in Employment Act). Though the word “harassment” is never used in the Civil Rights Act, the Supreme Court has abundantly asserted that harassment is a form of discrimination in the sense of Title VII when it involves an element of discrimination based on sex, race, religion, national origin, age or disability. The conduct must be severe enough to create a hostile work environment and must result in a tangible change in an employee’s employment status or benefits.
Defining what is and is not harassment: a vast task taken on by the courts
Under US federal law, a hostile work environment is found whenever an employee finds themselves 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 purposely tries to force an employee to quit.
Courts have held that a single, severe enough, act can be enough to establish harassment, though repeated claims tend to create a stronger case for hostile work environment harassment. The court must look at several factors, including whether the victim was the harasser’s sole target, whether the victim played a part in the alleged harassment act, and whether hostile remarks were involved. The prior relationship between the harasser and its victim is also to be examined by the court.
In another case, Page v Superior Court, a court of appeal was faced with a case of sexual harassment by a male supervisor toward his female employee. The employee complained to the head of the company and proceeded to take a one-month leave of absence due to stress. She was terminated directly after this. The Court considered this dismissal an act of harassment, as it was clearly carried out in retaliation against the employee.
Frequent sexual advances and comments from a supervisor to his female employees constitute hostile work environment harassment. But one isolated insult is not hostile work environment, and neither are two suggestive remarks or a few suggestive statements, several winks and a request for a date by a coworker.
In France, as in the United States, case-law has helped shape the scope of the notion. For instance, the Cour de Cassation established that there is moral harassment, regardless of intent, when repeated acts have led to a deterioration of working conditions likely to affect the rights and dignity of the employee, to alter their health or jeopardize their professional future.
Forcing an employee to carry out work without the necessary protection or equipment, imposing unmotivated sanctions, depriving an employee of their tools for work, and assigning only menial or humiliating tasks (cleaning the toilet for a secretary, rummaging through the trash) have all been considered as constitutive of moral harassment. So has mockery on the employer’s part: snapping one’s fingers to call an employee, verbal and psychological pressures, derogatory nicknames, vulgar speech, private or sexual statements, intrusion into an employee’s private life, public humiliation are all examples of moral harassment involving mockery.
Other less degrading acts have been held to constitute moral harassment, such as increasing the workload of an employee, modifying the work conditions without any justification (for example, modifying the work hours), or putting the employee in an isolated office. Additionally, excessive authority exerted over all workers cannot be held to be moral harassment, but it would if it were exerted on a single employee.
However, increasing an employee’s working hours is justifiable and not constitutive of moral harassment when the company finds itself in a difficult economic context. Disciplinary sanctions, even if they are frequently repeated, are not moral harassment when they are justified, as are verbal observations pointing out professional incompetence or lack of work or effort. The lack of space for a female employee returning from a maternity leave in a company that has moved to new facilities does not constitute moral harassment either, due to the economic context that has led the company to change facilities.
In France, acts that could qualify as moral harassment have to be repeated and not merely occasional, regardless of whether they meet all the other criteria of the definition of moral harassment. 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).
A main difference between the French and the American notion is that hostile work environment harassment encompasses sexual harassment, while in France physical violence and sexual harassment are covered by different laws. Nor does French moral harassment include mere stress at work, or mere conflicts between coworkers, while moral harassment is asymmetrical and targets one specific individual. Similarly, an unpleasant workplace or work environment (crowded, bad lighting, decrepit workplace) is only moral harassment if only one individual suffers from it or is targeted by it. Finally, moral harassment is destructive by nature and involves malicious intent against the individual.
With harassment in the workplace, legislators and judges face a complex challenge: covering a multiplicity of situations and behaviors in order to protect workers from a multifaceted phenomenon liable to cause a great deal of psychological pain; indeed, according to one study, 50% of cases of moral harassment in France cause the victim to suffer from depression for more than 18 months. In the face of such a destructive phenomenon, one can only call for more comprehensive laws, leaving less discretionary power to the courts.
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Ezer, Marius, and Oana Florentina Ezer. “Workplace Harassment, Mobbing Phenomenon.” Persp. Bus. LJ 1 (2012): 298
You can read the law in French here: http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000408905&dateTexte=&categorieLien=id
“Le harcèlement moral: la violence perverse au quotidien”, Marie-France Hirigoyen, 1998, Éditions La Découverte & Syros
(1995, Cal.App.4 1206)
(EEOC v Hacienda Hotel, 9th circuit, 1989)
(Meritor Savings Bank v Vinson, 1986, 477 US 57)
(Rabidue v Osceola Refining Co, 6th Circuit, 1986)
Scott v. Sears, Roebuck & Co. (7th Circuit, 1986)
in a decision dated 20 October 2011 (no. 05-43914)
● 60 U. Cin. L. Rev. 1281 (1991-1992)
● From a Woman’s Point of View: The Use of the Reasonable Woman Standard in Sexual Harassment Cases, Deborah S. Brenneman
● x27 B. C. Int’l & Comp. L. Rev. 477 2004
● “Les moyens tirés d’agissements de harcèlement dans le contentieux administratif”, Jean Raymond, http://gymnopedie-juridique.info/harcelement.pdf
● Guide pratique du droit du travail, La documentation française, 10e édition, 2010
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