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Catherine Le Maguresse: "Businesses are also to blame in these type of cases"

Translated Wednesday 1 November 2017, by Hannah Smith

"We are underestimating prejudices relating to sexual harassment” particularly in the workplace, claims the former President of the Association for Protection of Women Against Violence (APWAV) in the workplace. We spoke to Catherine Le Mageuresse about harassment in the workplace.

Do you think that social media campaigns in the wake of allegations against Weinstein will improve the moral conscience in society?

Catherine Le Magueresse. Since the Anita Hill scandal in the USA in 1991, where a black lawyer accused a US Supreme Court Nominee of sexual harassment, the first laws surrounding sexual harassment were passed in France. Updates were made to the Labour Laws and the Penal Code in 1994. Every time we hear stories like this, we think it will be the last. Having said that, things are getting better. The hashtag #balancetonporc (Spill the beans), has gained huge support. It’s important that every woman reveal her attacker; in doing so she protects not only herself but potentially others too. At the moment, no business wants to see its name associated with harassment complaints. But it also depends on the environment in which someone works. In big nightclubs, the cost of dismissing aggressors in high positions would be higher than simply dismissing the victim. It’s in scenarios like this where French businesses are behind in comparison with their American counterparts. In fact, French businesses are criticised for heavy handed dismissals in these circumstances. This is the reality which must be changed.

95% of women have lost their job after raising a complaint against their attacker, according to figures released by APWAV. How do you interpret these results?

Catherine Le Magueresse. There is an enormous amount of documented cases where women have left their jobs after raising an allegation. It could be that the woman takes sick leave, only to be labelled as incompetent, or she is dismissed for a "serious mistake", even when it is outlined in the grounds for dismissal under "serious termination", which is the holy grail in contesting this against the employment tribunal. There are some who leave without notice, especially in SMEs. We know of professional reprisals, refusal to train, refusing to renew temporary contracts. However, article L.1153-3 of France’ Work Ethics forbids any sanction, dismissal or discrimination to be imposed on any person who raises a sexual harassment complaint or anyone related to them.

Victims of sexual harassment usually don’t have enough proof to bring their aggressors to justice. Why is this? And how can the allegations be proven in the courts?

Catherine Le Magueresse. Victims know that it’s their word against another. They think that no one will believe them. However, it’s their word that is crucial to the evidence. In less than 5% of cases is there no trace of evidence - either written or photographic. There are also stacks of evidence in relation to the discrimination a victim may face: has she spoken to her GP? Has the GP said that this has had a negative impact on her health? The French Supreme Court of Private Disputes reminds us of the need for security and also health and safety practices in the workplace. So, has the victim told her HR representative or colleagues about these incidents? Former colleagues could also have been victims in the past; it would be useful to have a peek in the HR file to find out. The victim may also want to climb the career ladder- if she talks it might be pulled out from under her. The labour inspectorate investigates cases of harassment but this is time consuming and it lacks resources. There may also be proof outside the workplace, for example of friend or family statements. Victims often think that the situations aren’t worth speaking about, but burden of proof is written into labour laws. If an allegation is raised, it is up to the employer to decide if it would have value.

Is current legislation regarding sexual harassment efficient enough?

Catherine Le Magueresse. Victims can claim compensation but this is often insufficient in statutory damages. We underestimate the effect that sexual harassment has, not only on a person’s finances, but also on the personal level. In 2012, the repeal of an offence of sexual harassment according to the 2008 Law was deemed unconstitutional by the Supreme Court of France. A new law was formally passed which took environmental factors into consideration when considering sexual harassment allegations. The law is set out well, but it isn’t always applied. When an employee wins her case, the dismissal is declared null and void, but this doesn’t mean that there are still no sanctions. Normally, employees who are awaiting their case to be heard could wait up to four years, and must be paid during this time, but the average employee loses six months’ wages. We must also ensure that the French Supreme Court of Private Disputes accepts audio recordings as proof, not only in the courts, but also in employment tribunals. There’s a lot to do in the employment tribunals. With their rulings, they don’t go in the right direction. From experience, we know that harassment cases are excluded from caps of reparations, but we also know very well that women often take the initiative and sever ties with the employer in this type of situation. From this, we see their reparations capped like the majority of employees. Social repercussions which stem from sexual harassment are under-estimated. We are now facing a public policy crisis. It’s time the government take action.

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