Apparence physique et principe d'égalité de traitement entre les sexes : Les compagnies aériennes également dans la tourmente

According to a recent decision by the French Court of Cassation (1), an airline steward being denied boarding because of his long braided hair tied up in a chignon on the grounds that his hairstyle didn’t meet company regulations, is deemed a form of discrimination directly based on physical appearance related to gender.

• Discrimination on the grounds of physical appearance is prohibited

Article L. 1132-2 of the French Labour Code prohibits any unequal treatment of employees based on their origins, gender, lifestyle, identity, or physical appearance. The prohibition of discrimination on the grounds of physical appearance was introduced into the Criminal Code (2) and the Labour Code by means of Article 1 of Law n° 2001-1066 of 16 November 2001.

• Employer restrictions justified by the nature of the work and proportionate to the goal pursued

Independently of this principle of equal treatment, the Court of Cassation has ruled several times on the subject of clothing limitations or, more rarely, on conditions related to physical appearance, that they may be imposed on employees as long as the objective is legitimate, justified by the nature of work, and proportionate to the goal pursued.

Although it is acknowledged that the employer may subject employees to restrictions relative to their physical appearance and clothing, the Court of Cassation regularly recalls that exceptions must be strictly considered and duly justified.

Physical appearance unquestionably covers height, weight, and aesthetics. The question of whether it also includes clothing, hairstyle, beards, tattoos, and body piercing remains controversial even if it may be noted that the Aix-en-Provence Court of Appeal (3) recently ruled that the dismissal of a paramedic on the grounds of his having tattoos was null and void.

In that case, the employer claimed that the employee had not respected the contractual and regulatory terms when he decided to get very visible tattoos of gothic letters on his hands and of a dragon on his neck. The employer referred, on the one hand, to the employee’s work contract, which stipulated that he must be correctly dressed with a well-groomed appearance and on, the other hand, to Article 22 b of the national collective bargaining agreement for road transport and auxiliary transport activities, which stipulates that employees must be neat and clean in terms of presentation and work attire. Yet, the Court judged that the employer had discriminated against the employee. In particular, the Court considered that:

– objectively, having such tattoos would not shock clients
– the employer’s goals were not relative to health, safety, hygiene, propriety, or the need to be identified by clients,
– more generally, the absence of tattoos is not in line with the evolution of a society in which more and more people have tattoos, including older people.

In internal regulations or codes of behaviour, employers can stipulate a certain number of elements relative to dress code or physical appearance with which employees must comply but these restrictions must strictly correspond to the requirements of the employees’ professional activity.

By way of illustration, in terms of physical appearance, the Court of Cassation already recognised as valid the dismissal of a dancer at the Moulin Rouge because of her weight, thus judging that her physical appearance was an objective professional requirement bearing in mind her profession as a dancer, which involved specific physical and aesthetic criteria (4).

The Court also recognised an employer’s right to prohibit an estate agency employee who was in contact with clients from wearing a tracksuit (5).

Contrary to the decision of 23 November 2022, these judgements only made an isolated assessment of the discrimination on the grounds of physical appearance in view of the professional environment the employees worked in without dealing with the question of gender equality.

Yet, the Court of Cassation had issued a similar ruling to that of 23 November 2022, in its judgement of 11 January 2012, wherein it had recognised the direct discrimination based on physical appearance related to gender when a head waiter from a restaurant was prohibited from wearing earrings because he was a man (6).

• Discriminations relative to physical appearance according to the Défenseur des droits (Defender of Rights)

Furthermore, the Défenseur des Droits published a framework decision on 2 October 2019 that highlighted the increase in discrimination related to physical appearance in the workplace (7), illustrating it with the large number of dismissals based on weight (8), hairstyle (9) or piercings (10) that were, consequently, deemed unlawful.

The Défenseur des Droits maintains a broad notion of discrimination based on physical appearance.

In this framework decision of 2 October 2019, the Défenseur des Droits provides a breakdown and recommendations as to the practices to be proscribed (11) :

– systematically punishing weight gain in professions with physical and/or aesthetic requirements;
– imposing “certain strict and conservative (dress) codes” such as heels, skirts, and low-cut tops;
– prohibiting textured hairstyles or imposing haircuts that correspond to Eurocentric standards;
– prohibiting beards, except for security reasons;
– restricting corporal expressions (tattoos, piercing) when this is not necessary for the work position held;
– establishing rules, in particular, that violate religious freedom, vehicle sexism or are specific to sex, gender or ethnic origins.

Nevertheless, the Défenseur des droits recalls the circumstances that can allow some of these practices: exceptional and duly justified circumstances, hygiene and safety needs, propriety, disturbances caused within the company, or client disapproval.

The Court of Cassation decision of 23 November 2022 deals with possible restrictions on physical appearance and expressions according to the principle of equal treatment of men and women.

This jurisprudence is innovative as it directly borrows its terms from EU jurisprudence and adjudicates on “the social perception of the physical appearance of genders“.

The Court of Cassation quashed the Court of Appeal’s decision and recalled that the difference in treatment based on gender must be justified by the nature of the task to be carried out, correspond to a genuine, essential professional requirement, and be proportionate to the goal sought. These elements are directly taken from CJEU jurisprudence and EU legislation (12).

Today, employers are invited to exercise caution when differences in treatment are to be applied, in particular because of hairstyle, and more generally, because of appearance. Discriminations are a burning issue. Furthermore, they are the subject of a national plan to fight racism, antisemitism, and discrimination presented by the government on 30 January 2023.

(1) Cass. soc. 23-11-2022 n° 21-14.060 FP-BR, T. c/Air France.
(2) Article 225-1 of the French Criminal Code.
(3) Aix-en-Provence CA, 4th Chamber, 29 January 2021, n° 17/18160.
(4) Cass. soc., 5 March 2014, n° 12-27.701.
(5) Cass. soc., 6 November 2001, n° 99-43.988.
(6) Cass. soc., 11 January 2012 n° 10-28.213 FS-PB.
(7) Framework Decision n° 2019-205.
(8) CA Paris, 16 January 2014, no 12/01734.
(9) CA Rennes, 12 October 2011.
(10) CE, 4 July 2018, n° 419180.
(11) Framework Decision, Défenseur des Droits, n° 2019-205, 2 October 2019.
(12) Article 4, $1 Directive 2000/78/CE of the Council of 27 November 2000, CJEU, 14 March 2017, Micropole Univers, C-188/15.

Photo by Studio Republic on Unsplash
MSI Global Alliance, a worldwide network represented in 84 countries with 200 independent law firms, accountants, and tax advisers.
Réseau Entreprendre Paris gathers 250 CEOs who help and coach entrepreneurs during their company creation or purchase.

Terms of Service/Privacy Policy

© Schmidt Brunet Litzler