Droit Social | Plaisanteries sexistes au travail. Le licenciement ne porte pas atteinte à la liberté d'expression

Pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms, all people have the right to freedom of expression (1). An employer may only restrict this freedom of expression if such restrictions are justified by the nature of the work to be done and proportionate with the goal pursued. That is what was confirmed by the French Highest jurisdiction, Cour de Cassation, decision dated 20 April 2022 (2).

According to the French Labour Code (3), except in the case of a breach, inside and outside the company, an employee enjoys freedom of expression whose only applicable limitations are those justified by the nature of work to be carried out and proportionate with the goal pursued.

Although the termination of an employment contract on the grounds of remarks made by the employee constitutes a priori interference by the employer in the employee’s right to exercise freedom of expression, it is up to the judge to verify if, in actual fact, in the case brought before him, such interference was indispensable and to do so, to gauge whether the measure was necessary in respect of the goal pursued, and whether it is appropriate and proportionate with it. The French Court of Cassation’s decision of 20 April 2022 illustrates these principles.

• A sexist joke can justify an employee’s dismissal

In this instance, the case concerned an employee of an audiovisual production company that ran a television game. According to his employment contract, the employee undertook to respect the charter of the television channel in charge of broadcasting the television programme. Such charter stipulated that “he must not incite hatred or contempt of others on the grounds of gender and must not promote sexist violence” regardless the media in which he may appear. However, during a programme, the presenter made a remark, that were supposed to be a joke, articulated in the following fashion: “As it’s a really sensitive subject, I’ll have a go at it: guys, do you know what you say to a woman who already has two black eyes? – This is great, this one! – You don’t say anything. You’ve already explained it to her twice.

Then, the presenter, also a comedian, behaved unsuitably with a candidate. He asked her several questions about the frequency of her sexual relations with her partner even though his employer had already warned him that he needed to change the way he behaved towards women on the show.

In this context, the audiovisual production company dismissed the presenter for gross misconduct. The presenter challenged his dismissal, but the French labour tribunal and the French Court of Appeal ruled that his dismissal was justified.

The comedian appealed to the French Court of Cassation, challenging his dismissal on the grounds that he had not abused his freedom of expression or committed a breach of his moral obligations.

• The main questions asked at the French Court of Cassation

Does the employee’s guaranteed freedom of expression preclude his dismissal when the remarks concerned were presented as a joke? Did the remarks made by the employee constitute a breach of his employment contract?

According to the European Court of Human Rights, when a judge is called upon to rule upon a dismissal based on an employee’s statements, he must verify :

– That the employer’s right to interfere in the employee’s freedom of expression is provided for by law;
– That this limitation of the freedom of expression has a legitimate purpose;
– That the dismissal is necessary and proportionate to the legitimate purpose sought by the employer.

For many years, the Social Law Chamber of the French Court of Cassation has judged that, except in the case of breach, an employee enjoys freedom of expression inside and outside the company, and that the only limitations applicable are those justified by the nature of work to be carried out and commensurate with the goal pursued.

A controlled limitation of the freedom of expression in line with a legitimate and well-defined goal

– The employee presenter was obliged by his employment’s agreement to respect a charter that stipulated that he must not make any sexist comments. As a consequence, making such remarks constitutes a breach of contract.

– The employee presenter made sexist remarks on air even though several recent mediatised events had served as a reminder of the need to take action against domestic violence and sexist discrimination (Weinstein affair, women speaking out on social media with the “#MeToo” and “#BalanceTonPorc” movements, the announcement by the French President of steps taken to tackle gender-based violence and sexual abuse).

– By limiting its presenter’s freedom of expression, the audiovisual production company was pursuing the legitimate goal of fighting against such behaviour and protecting its reputation and rights.

A dismissal proportionate with the legitimate goal pursued by the employer

– In the television programme he was hosting, the comedian/presenter made sexist remarks that he introduced as a “joke“, but at the very end of the programme with no possibility of clarifying such intent.

– During the following days, on the set of his own television game, the presenter expressed his satisfaction with the controversy by repeatedly making misogynous and offensive remarks to candidates.

Therefore, given all of these elements, the judges, whose decision the French Court of Cassation confirmed, deemed that:

Given the repetitive nature of the sexist comments, which belittled violence against women, and the risk to the production company’s business, as the television channel threatened to cease broadcasting the programme, the dismissal was found to be proportionate with the legitimate goal of fighting gender-based violence and sexual abuse and protecting the employer’s reputation and rights.

In a statement that accompanied its decision, the French Court of Cassation specified that it did not intend to stop comedians from making certain jokes or censor them. The French Court of Cassation “works within the framework of the employment contract that the comedian presenter had signed” and within the context of the statements made.

(1) ECPHRFF Article 10.
(2) Court of Cassation decision of 20 April 2022, n°20-10-852.
(3) Article L.1121-1 of the French Labour Code.

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