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Defender of Rights
TSA 90716 - 75334 Paris Cedex 07
+33 (0)9 69 39 00 00
PROCEEDINGS
From collective
—
mobilisation to the
defenseurdesdroits.fr
recognition of systemic
discrimination in law
STUDY DAY 24 NOVEMBER 2021
In the eyes of the law, we are all equal
© 03-2022 | Defender of Rights
Proceedings | Study day 24 November 2021 · 2022
CONTENTS
Summary 05
FOREWORD
Claire Hédon 06
II· THE TRANSLATION INTO
I · TIME FOR MOBILISATION: RECOGNISING
LAW OF DISCRIMINATION:
COLLECTIVE DISCRIMINATION 10
PROVING DISCRIMINATION 20
· Foreword
Liora Israël 10 · Foreword
Sarah Benichou 20
· How do we become aware that we have been,
individually and collectively, the victims · Undignified working conditions, mafia
of discriminatory differential treatment? and trafficking: the role of the labour
The case of chambermaids at the Ibis inspectorate in action.
Batignolles hotel. Marilyne Poulain 21
Rachel Kéké, Sylvie Kimissa 11
· Indirect discrimination and shift
· The mobilisation of young people in a district of the burden of proof.
of the 12th arrondissement of Paris in the face Mathilde Zylberberg 24
of illegal police practices.
Omer Mas Capitolin 12 · The interest of situation testing to combat
discrimination.
· From construction of the collective Patrick Charlier 28
to construction of legal action.
Savine Bernard 14
· Action by Moroccan railway workers against
SNCF. From social struggle to legal battle.
Vincent-Arnaud Chappe, Narguesse
Keyhani 16
· The ordeals of the collective in legal
proceedings.
Clara Gandin 18
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IV · SANCTIONING AND CORRECTING STRUCTURAL
DISCRIMINATION. THE COLLECTIVE ACTION
OF THE FUTURE 48
III · HIGHLIGHTING SYSTEMIC DISCRIMINATION.
· Foreword
THE LINK BETWEEN SOCIAL SCIENCES
Gwénaële Calvès 48
AND LAW 32
· Group action: a future solution to repair harm
· Foreword caused by discrimination?
Marie Mercat-Bruns 32 Frédéric Guiomard 48
· The contribution of social sciences: the case · Predictive machines and social justice
of discriminatory identity checks. in the US police.
Slim Ben Achour 34 Bilel Benbouzid 51
· The case of Malian construction workers: · Taking action against systemic
a workplace sociologist called as a witness. discrimination: the example of Quebec.
Nicolas Jounin 38 Philippe-André Tessier,
Geneviève St-Laurent 52
· Gare du Nord cleaning staff: systemic
discrimination based on vulnerability
and gender-based dominance.
CONCLUSION
Sandra Bouchon 41
Claudine Jacob 62
· Highlighting systemic discrimination before
European courts and UN committees:
Bibliographic entries and main publications
the role of social sciences.
of the authors 64
Isabelle Rorive 43
Detailed agenda for the study day 72
Notes 74
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Proceedings | Study day 24 November 2021 · 2022
Rachel Kéké, representative of the chambermaids at the Ibis Batignolles hotel
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Proceedings | Study day 24 November 2021 · 2022
SUMMARY
In the last twenty years or so, legal action against discriminatory situations has developed
under the influence of European law and the mobilisation of stakeholders (unions, associations,
citizens' groups, etc.). Despite the undeniable advances to which the HALDE and then the Defender
of Rights have contributed, litigation remains largely pegged to an individualist and restorative
vision of the law.
Although we are seeing signs of a shift in paradigm with a growing number of trials involving
multiple plaintiffs, focused on challenging discriminatory systems anchored in the very functioning
of organisations, this progress remains fragile.
On the basis of the challenges raised by research supported by the Defender of Rights following
the proceedings of immigrant railway workers against SNCF and the presentation of other collective
action, the idea behind this study day was to contribute to shared reflection on the future of non-
discrimination law, in light of its ability to act at collective and corrective level, and not simply
at individual and restorative level.
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Proceedings | Study day 24 November 2021 · 2022
FOREWORD
CLAIRE HÉDON recourse on behalf of victims in the event
The Defender of Rights of discrimination; acceptance of situation
testing as evidence before civil and criminal
We are particularly pleased to be able courts, or the protection of employees against
to present the proceedings of the Study Day retaliation after they have reported a situation
From collective action to the recognition of discrimination2.
of systemic discrimination in law. Despite the legal developments noted,
This multidisciplinary study day was held redress through the courts remains onerous
on 24 November 2021 in Paris and was and painful for victims and is not always
organised by the Defender of Rights. effective. The rate of non-recourse remains
very high: for example, of those who reported
I would like to take this opportunity to thank
having experienced discrimination
everyone who contributed to this event,
in employment on the grounds of their origin,
in particular our foreign counterparts, Patrick
only about 12% started legal proceedings
Charlier, Director of Unia, an independent
according to the 14th survey of discrimination
anti-discrimination organisation in Belgium,
in employment3.
and Philippe-André Tessier, President of the
Commission des droits de la personne et des In order to listen to victims better, raise
droits de la jeunesse of Quebec, who had awareness of the Defender of Rights
travelled for the occasion. and encourage use of the law, a discrimination
whistleblowing platform, announced by the
Like previous scientific events – I am
President of the Republic in December 2020
thinking here of the 2018 symposium on the
and organised by the Defender of Rights,
multiplication of discrimination criteria1 – this
was launched on 12 February 2021. Entitled
new Defender of Rights study day illustrates
3928 - antidiscriminations.fr, this system
our desire to encourage dialogue between
is a reporting service and provides support
the field of legal science and social sciences
to victims of discrimination. In one year,
research and all legal professionals and our
over 11,000 calls were recorded. The vast
commitment to deepening collective reflection
majority concern discrimination in the field
on non-discrimination law.
of employment, but the finger is also pointed
The effectiveness of non-discrimination at public services. The two main discrimination
law is at the heart of what the Defender criteria cited are origin and disability. It goes
of Rights does. to show how much this new doorway,
in making discrimination visible and offering
For 20 years, French non-discrimination law
recourse to those who feel they are victims,
has undergone many improvements such
meets a great need.
as the integration of definitions of direct
discrimination and indirect discrimination, The Defender of Rights’ investigative powers
understood in the light of their discriminatory and the solutions it proposes must help victims
effects rather than their intention; the shift to recognise their rights but must also advance
of the burden of proof for the benefit of victims case law. In this regard, criminal justice
before civil courts; recognition of the ability remains a particularly arduous path: often
of trade unions and associations to initiate victims cannot meet the very high demands
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Proceedings | Study day 24 November 2021 · 2022
of judges in terms of proof of intent and come RECOGNITION BY JUDGES OF THE DISCRIMINATORY NATURE
up against the opposition to change of the OF IDENTITY CHECKS
public prosecutors. Nevertheless, the expertise
of the Defender of Rights’ lawyers has helped Doubly competent, on the one hand in the
move litigation and non-discrimination law fight against discrimination, and on the other
in civil matters forward through the in respect for the ethics of the security forces,
observations that the institution can submit the Defender of Rights has invested in this
when claimants bring matters before subject for many years.
the judge. First of all, in 2016, it published the results
of an unprecedented investigation into
AS A RESULT, THE INSTITUTION HAS ADVANCED CASE LAW police-citizen relations that made it possible
ON HARASSMENT BASED ON A DISCRIMINATION CRITERION to objectify identity check practices in the
absence of official activity data and to highlight
The institution has helped a broader discriminatory checks6. It put forward its
interpretation of sexual harassment recommendations on this issue in numerous
to be recognised: according to our analyses opinions on proposals or draft laws7.
and observations, sexual harassment
Above all, the observations submitted
should not be restricted solely to direct
by the Defender of Rights contributed to the
sexual acts on the victim. The Orléans Court
unprecedented sanction of discriminatory
of Appeal, in a ruling of 7 February 2017,
checks by judges in 2015 and 2016, showing
followed our reasoning by considering that
how non-discrimination law, and in particular
“sexual harassment may consist of hostile
the shift of the burden of proof, should apply
environment harassment, whereby,
to identity checks8. The Court of Cassation
without being directly targeted, the victim
took on board the Defender of Rights’ analyses
suffers obscene and vulgar provocations
on the lack of traceability as an obstacle
and jokes that become unbearable”.
to effective recourse, stressing that identity
And the employer was condemned for
checks “are not registered”9.
not protecting its employees against this
“hostile environment harassment”4. The Defender of Rights also presented
its observations following the referral
The Defender’s legal investigations
and recourse of a group of college students
and analyses have also characterised
stopped at the Gare du Nord upon their return
the concept of discriminatory harassment
from a school trip10. In its judgment of 8 June
and obtained judicial sanctions for such
2021, the Paris Court of Appeal followed our
behaviour and for inaction by employers.
observations and condemned the State due
The Defender of Rights has also enabled to the discriminatory nature of the identity
such harassment to be characterised on the checks of these three high school students
basis of a single serious act: the actions of foreign origin11.
do not need to be repeated for a situation
In addition to sometimes particularly serious
to be qualified as discriminatory harassment,
individual situations of discrimination,
which the Rennes Court of Appeal confirmed
the institution is therefore interested
in an innovative decision of 10 December 20145.
in discrimination in its collective dimension,
Since then, the Defender has helped and in its prevention and correction.
other forms of discriminatory harassment
Discrimination is not only the product
to be recognised in other cases.
of individual acts, it is also the result
of a number of factors weighing on the
behaviours of each individual. They combine
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Proceedings | Study day 24 November 2021 · 2022
in the areas of daily life and are accentuated. the Defender of Rights highlighted the
That is why the institution uses the concept existence of systemic discrimination based
of systemic discrimination. on origin and nationality against a group
of 25 Malian construction workers17.
In opinion No. 20-11 of 11 December 202012,
we recalled that in certain situations, it may HALDE and then the Defender of Rights
be useful to consider certain discrimination contributed to the movement of appropriation
“from a systemic perspective, in other words of non-discrimination law by both applicants
in a broader context that takes into account: and judges. Of course, litigation is still widely
- stigmatising representations (stereotypes linked to an individualist and restorative
and prejudices); - interaction between the vision of the law: it is used first and foremost
different types of discrimination suffered; to restore the rights of a singular victim
- the broader socio-economic inequalities of discrimination. But we are seeing signs
that structure society; - and the substantial of a shift in paradigm, with a growing number
part played by institutions in producing these of trials involving multiple plaintiffs, seeking
discriminations.” to challenge discriminatory systems anchored
in the very functioning of organisations.
This concept makes it possible to better
understand the reasons why a group This study day aims to show these advances,
of individuals may be particularly which are the result of the commitment
disadvantaged compared to another, since of many stakeholders, but primarily victims,
differences in treatment often result from who have rallied to successfully exercise their
historical and social inequalities based right to recourse before the courts, despite the
on deep-seated and recurring stereotypes. onerousness and length of the proceedings.
In our latest report on the implementation The recognition by civil courts of situations
of the International Convention on the Rights of systemic discrimination within certain
of Persons with Disabilities by France13, working organisations constitutes a major
as in the Discriminations et origines : l’urgence step forward in non-discrimination law, such
d’agir report published in June 202014 or in our as the introduction of class action into our
recent contribution on Travellers in October legislation. The work or cases presented here
202115, the institution reiterated the magnitude will help to deepen the necessary dialogue
of the cumulative and systemic discrimination between law and social sciences. The work
facing these populations in France. done in the world of research provides key
points of support for lawyers, including
We also pointed out the risk of this systemic
the Defender of Rights, to contextualise
discrimination becoming automatic with the
discrimination, convince the judge and
deployment of algorithms and other artificial
highlight their systemic dimension. The new
intelligence tools that tend to integrate
forms of litigation have thus benefited from
discriminatory biases and amplify systemic
socio-legal reflections on the concept of
discrimination16.
systemic discrimination.
Structural discrimination can also be
However, this progress remains fragile given
identified within organisations. The Defender
the obstacles: proving collective unequal
of Rights has been contacted regarding,
treatment remains difficult, collective action
and has investigated and updated,
on discrimination requires a great deal of
collective discrimination situations in some
resources, the procedure for class action
organisations. Our analysis of systemic
remains difficult to access and limited in its
discrimination has helped to introduce this
effects, and the judge’s recognition of massive
concept into case law. As part of the study day,
or even systemic discrimination within
you will revisit this 2019 case in which
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Proceedings | Study day 24 November 2021 · 2022
an organisation remains rare. Finally, sanctions
in the event of victory do not serve as much
of a deterrent.
The study day From collective action to the
recognition of systemic discrimination in law
aims to build reflection on the future of non-
discrimination law, on the ability of the law
to act at the collective and corrective
level, rather than simply at the individual
and restorative level.
On the basis of research supported by the
Defender of Rights on the proceedings
by immigrant railway workers against SNCF
and the presentation of other mobilisations
and cases18, the four round tables planned
constitute spaces for exchange and debate on
these issues with the various parties involved.
The files show that it is essential to deepen
collaboration between stakeholders, lawyers
and sociologists in particular, with a view
to using the law as a deterrent and a lever
for structural change within organisations.
I hope that these contributions will provide
a useful foundation for achieving this
shared objective.
CLAIRE HÉDON
Claire Hédon, Defender of Rights
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Proceedings | Study day 24 November 2021 · 2022
PART I
TIME FOR MOBILISATION:
RECOGNISING COLLECTIVE
DISCRIMINATION
FOREWORD How do we become aware that we have
been, individually and collectively, the victims
LIORA ISRAËL of discriminatory differential treatment?
Sociologist of Law and Justice, How can we make the shift from the individual
Director of Studies, EHESS case to the collective? How can the group take
advantage of the law? What people and what
I would like to thank the Defender of Rights’ support are needed? So many questions that
teams for organising this event and Claire have been addressed by the social sciences
Hédon as the Defender of Rights for her in recent years, but to which there are still
introduction. As a sociologist of law and justice, too few answers.
I had the opportunity and great pleasure,
The “ordeals of the collective” should therefore
together with students from the EHESS’s
be mentioned in this round table: under
Potential Social Sciences Workroom (OuSciPo),
what conditions and with what material
of working with the Defender’s teams
and symbolic resources does a group
in 2018-2019. This collective investigation
of people wanting to make a complaint form
concerned the handling of claims filed with
and manage to keep going in time, despite
the institution, via the delegates of the
the length of the procedure, the difficulties
Defender of Rights or in writing, and partly
encountered and any conflicting interests
concerned the specificities of identifying
within the group, so that one day, perhaps,
and monitoring cases of discrimination.
a court decision might be reached that
Based on specific cases, this round table actualises the validity of a claim.
covers the conditions, steps and people
necessary for the constitution of collectives.
Nothing less obvious, in fact, than the
constitution of collective action on the basis
of discrimination, awareness of which often
starts with a feeling, a sense of self.
10Proceedings | Study day 24 November 2021 · 2022
HOW DO WE BECOME AWARE THAT WE HAVE BEEN, are interested in is money. They couldn’t care
INDIVIDUALLY AND COLLECTIVELY, THE VICTIMS less about your way of life.
OF DISCRIMINATORY DIFFERENTIAL TREATMENT? THE CASE
At one point, the managers wanted to transfer
OF CHAMBERMAIDS AT THE IBIS BATIGNOLLES HOTEL.
employees who were part-time for health
RACHEL KÉKÉ, SYLVIE KIMISSA reasons, considering them to be no longer
effective. This decision is what triggered our
Representatives of the chambermaids
movement, in light of the furious pace at which
at the Ibis Batignolles hotel
we had to work.
First of all, we would like to thank you for We stood up and said “no more!”. Just because
inviting us. We are really happy to be able we work, because we need this job to feed our
to talk to you about the fight we have been children, we shouldn’t be “enslaved”. When we
through. went on strike, it was to denounce this system
so that people could hear about what we
The action by the chambermaids at the Ibis
experienced in this hotel.
Batignolles hotel lasted almost two years,
and they were on strike for eight months. We decided to set up a work collective
and approached the CGT HPE union,
The Ibis Batignolles hotel belongs to the Accor
which informed us about our rights.
Group. There were 19 of us chambermaids
employed by an agency. We did not have We found a lawyer to defend us and explain
the same rights as our colleagues from the our rights and what we were and weren’t
Accor Group, even though we worked on the able to do. At the beginning, the Group said:
same site. We could not eat at the same table “They’re not our employees, they’re employed
as Accor Group employees, we could not by the agency”, but we continued to point the
hang around together even though we worked finger at the Accor Group as the principal.
together. Only Accor employees received Faced with the intervention of the lawyer
a meal allowance. Everyone else had to spend and the Defender of Rights, the Accor Group
their own money to eat in the canteen, backed down.
and even to buy a bottle of water.
The movement lasted 22 months. We fought
The chambermaid profession is a tough job and succeeded in winning most of our claims.
and the Accor Group has put in place a system
Our main demand was to be brought into
that exploits the women who work there.
the Accor Group, to bring agency work,
Most of the women are immigrants. They
in our opinion a form of abuse, to an end.
are trapped, raped, humiliated. When guests
Unfortunately we did not succeed with this.
go to the hotel to sleep, their room is clean and
But we did manage to get the meal allowance,
well prepared, but behind the scenes, there
the clothing allowance and a decrease in our
is a great deal of suffering and misery. Some
work rate.
women were crying because they had 40
to 50 rooms a day to clean, they were unable It pays to fight. There’s no denying it was
to work and they were told: “You don’t want hard work, the struggle was not easy, we were
to work, you’re fired, you can always go and insulted, people even told us: “Go home!”.
find another job!”. We suffered terrible threats People threw bottles of water, cans and
and went to work with a deep sense of dread: buckets of water at us in the middle of winter,
“What guests will I find? How will the day go? we stood out in the rain and snow.
Am I going to be attacked?...”. The work is so
difficult, it damages a woman’s body, breaks
your knees and back, but the agency and the
boss say: “You’ve got to work anyway”. All they
11Proceedings | Study day 24 November 2021 · 2022
Guests mocked us through the windows. But been in the habit of touching the genitals of
we kept our dignity. We stood our ground and these young people for years. As it concerned
we can now walk with our heads held high. their bodies and was a subject that was
The struggle continues, we will stay strong. difficult to talk about, these young people
Thank you very much. had not even told their own parents.
In view of these observations, solutions were
THE MOBILISATION OF YOUNG PEOPLE IN A DISTRICT sought to address this problem. We tried to
OF THE 12 TH ARRONDISSEMENT OF PARIS IN THE FACE mobilise the law by appealing to two lawyers.
OF ILLEGAL POLICE PRACTICES. Discussions took place between the young
people, the victims, their parents and the
OMER MAS CAPITOLIN
lawyers. The lawyers were able to explain what
Community Worker, Maison communautaire the law states, what could be done by taking
pour un développement solidaire (MCDS19) legal action, and from there the entire
mobilisation took place.
I’m going to illustrate a mobilisation using
a case concerning young people from As well as the competence of the lawyer,
the 12th arrondissement of Paris between it should be noted that the individual’s own
2013 and 2015. commitment is essential. In mobilising with
young people, the whole dynamic was
A group of around twenty young people
maintained because the lawyer went
complained about the highly inappropriate
to them. This was essential, to go further
behaviour and attitudes of a gendarmerie
than educational work, to obtain awareness
brigade. They were subject to repeated
and to enable victims to understand that they
checks, were victims of racist insults, and were
could use the law. How can the law be made
regularly victims of particularly humiliating
accessible to young people? How can we make
behaviour such as touching of their genitals.
them understand that the process is most
They were forced to endure real “degradation
likely going to be a long one?
ceremonies”. The events were happening
in police stations or in public spaces where Thanks to important media coverage
there were no cameras. (Médiapart and Le Monde), we were able
to mobilise more widely, beyond just the
At that time, I was asked by a team of local
victims and their families. A part of the
educators who had already tried in vain several
population, not affected by these checks,
times to enter into discussions with the local
discovered what was happening on their
police forces. My contribution consisted of
doorstep. The significant mobilisation has
working with these young people to try to
made it possible to organise exchanges with
equip them with the tools and skills they
inhabitants and families, public debates, etc.
needed to enter into discussions with the
authorities, the police, the town hall and so on. Discussions with lawyers, professionals
and families have enabled the development
One day, I witnessed a police check in the
of a strategy around legal proceedings.
middle of the afternoon, during which the
A joint complaint of “aggravated violence”,
police officer slipped his hand inside a young
“aggravated sexual assault”, “arbitrary
man’s tracksuit bottoms. I saw and understood
detention and arrest” and “discrimination”
what was going on.
against the police officers was filed.
When the young person came in, I asked him Inhabitants then summonsed the state
to talk about what had happened. His voice for “gross negligence” and for acts of
was liberated. After talking to several young “discriminatory harassment”. It is in the
people, we learned that police officers had context of this summons that the Defender
12Proceedings | Study day 24 November 2021 · 2022
of Rights was called upon to make its negligence. In addition, the Defender
observations before the courts20. of Rights has highlighted these systemic
discriminations.
Beyond the legal aspects, this case has helped
us to reflect on interactions between the I would like to quickly mention the new
police and citizens and alternative solutions mobilisation of the “Mums’ Brigades” in the
to improve the relationship between these Belleville neighbourhood. They are fighting
two communities. Thus, as justice can take a new weapon widely used by the police,
a particularly long time, this made it possible that of fines21. Fines become automated with
to use the skills of a social sciences researcher reasons that vary between “disturbance”,
to document police-citizen relations and have “breaking the curfew” when one was
materials, tools, etc. in place, “failure to wear a mask” when it was
mandatory, “consumption of alcohol on the
For example, the police officers said: “We get
streets” and “littering”.
a lot of calls from people saying that young
people are making a lot of noise”. “Exploratory This phenomenon is the cause of the over-
walks” were then organised to objectify these indebtedness of already vulnerable families
phenomena, to understand why young people and results in delinquency.
were hanging around their estates, and to
To the fines and unpaid debts are added
find alternative solutions so that these young
possible visits by bailiffs, bank charges,
people had secure places to meet, without
strategies to prevent the income of young
causing a nuisance for local residents.
workers being directly hoovered up
To accompany the procedure, tools were by the Treasury. Some young minors
needed, as was great creativity and fluidity are in a considerable amount of debt. The only
in the exchanges between the lawyer, the solution for them is to turn to drug dealing:
inhabitants and the professionals. Collective “Asking for gear and selling it in the street”.
construction was needed at every stage.
Faced with this situation, women are rallying
A blog was set up to keep the population
in the neighbourhood. They head onto the
informed throughout the procedure.
streets to observe, to try to put pressure on the
This mobilisation proved to be very beneficial police so that they know that adults are there
and its action went beyond the police-citizen and are keeping an eye on what is going on.
problems that led to the mobilisation: locals Legal clinics are organised to welcome young
have used their contacts to help young people and their families.
people look for work placements, for example,
Documenting this reality has highlighted the
and work has been undertaken with young
large number of minors who are involved and
people in this neighbourhood to make them
find themselves before the courts as a result
feel more like they belong. Illegal police
of these problems. Mobilisation is important
practices also disrupted the dynamics
to raise awareness among inhabitants,
of intrafamily education as fathers could not
to put in place a pressure strategy so that
go to the police station to fetch their child
police officers know that they can no longer
or complain without fear of suffering the same
act with impunity.
degrading treatment. This jeopardised
the feeling of authority they could have, But there is something missing in our country.
hence the strong mobilisation of mothers It is said that the law is accessible to all,
and women in the neighbourhood. but how can vulnerable young people
and families finance such burdensome
In conclusion, the police were condemned
proceedings, which require significant work
at the first hearing, but acquitted on appeal.
by many parties, over a long time? This is a key
In civil law, the State was convicted of gross
13Proceedings | Study day 24 November 2021 · 2022
issue, especially when dealing with systemic of 194823, two class actions ahead of their
discrimination and racism. In the United time, as well as the Safran case24 and the
States, the mobilisation of a number Caisse d'Épargne Ile-de-France (CEIDF) case25,
of important figures on these issues can two formal class actions pending before the
be one solution. This does not exist in France. courts. A common point in these cases is that
There is no denying that lawyers who take when plaintiffs arrive at the lawyer’s office,
on this type of case put their own firms there is a significant past history of claims.
on the line. In the Peugeot case, for example, individual
cases of discrimination were brought,
Support for mobilisation is also essential.
successfully, but in the end nothing changed
In our case, it was essential to organise the
within the company. In the case of the miners
neighbourhood, to work in the local community
of 1948, there was a history of claims,
to reassure victims because retaliation against
but of a political nature, because the miners
complainants was known. The complaint was
considered that it was the State that was
filed and the same police officers were still on
responsible for their dismissal by Charbonnage
duty in the neighbourhood. They continued
de France. Thus, they had referred to the
to monitor the complainants on a regular basis,
parliamentarians, the President of the Republic
threatening them: “Nobody is going to listen to
and other representatives of the State. In the
you anyway…”. It is essential to think about the
Safran case, there are a lot of past individual
type of mobilisation that is required and not
cases. The Group’s employees were among
approach mobilisation as something empirical
the first to take advantage of the right
and linear. People should be encouraged to join
to build cases on trade union discrimination.
the solidarity effort and they should be made
In November 2004, 168 cases were filed
aware that these are issues of societal
against six group companies (Snecma
transformation.
at the time). These involved the accumulation
of individual cases, grouped together with
FROM CONSTRUCTION OF THE COLLECTIVE a view to constructing collective action.
TO CONSTRUCTION OF LEGAL ACTION. For Safran, the only company concerned
by the class action, this resulted in damages
SAVINE BERNARD
of €3.5 million in the context of a global
Lawyer, Paris Bar, 1948 Avocats transaction for 86 employees. Finally, in the
CEIDF case, there was also a history of annual
The intervention concerns the interference
declarations by the CGT during the analysis
between the construction of the collective and
of the comparative situation report, but here
the construction of legal action in the context
again with the feeling for the CGT that nothing
of class action. There are two steps to tackle:
changed over the years.
• Analysis of the situations and choice of legal
Furthermore, it should be noted that in
action;
three out of the four cases (Peugeot, Safran
• The hardships faced by the collective when and CEIDF), the claims were filed through
an action is decided. trade union representatives. For the case
of the miners of 1948, this was not the case,
I will look at the analysis of the situations and
but we can note, however, the leading role
in part the choice of legal action. Clara Gandin
of a former trade unionist, Mr Carbonnier.
will deal with the second part of the subject.
Another essential element in the construction
The intervention is carried out on the basis
of the collective is that each case has
of my experience in four actions which can
a “leader” who organises the separate
be considered as class actions: the Peugeot
individuals and brings the matter to the law.
case22 and the case of the French miners
This facilitator is essential throughout the
14Proceedings | Study day 24 November 2021 · 2022
proceedings. It is a pivotal and essential In the Safran case, the final straw occurred
role, often performed by women, even in on one of its sites, the Le Creusot site.
environments where there is a majority Eleven employees referred the matter to the
of men, such as Safran. employment tribunal in summary proceedings
which, by order of 26 April 2016, ordered the
Finally, each action is initiated by a trigger.
communication of information to their panel
In the Peugeot case, there was an
which showed that unionised CGT employees
unsubstantiated closing of the report of the
were paid less than the others. The question
labour inspectorate for discrimination
was then asked about repeating individual
against 21 employees, drawn up following
actions. Of the 11 victims, 5 had already
the discovery of the Nathan-Hudson report
received compensation as part of the first
on the company’s human resources policy.
wave of mobilisation. The introduction of these
It referred to a method of classification
new interlocutory proceedings showed them
of employees distinguishing between good
that the discriminatory processes continued
employees (allies) and other employees
without any change despite the first individual
(revolutionaries). This tool revealed the policy
reparations obtained.
of systemic discrimination established within
Peugeot. Another trigger is the question At the Caisse d'Épargne, there was a very
of “transmission”. The trade unionists interesting action, brought by 28 employees
considered the fact of being discriminated including 26 women, which gave rise
against as inherent in the mandate (a unionist to a judgment on 18 December 2014.
is only good if he is discriminated against), The company had denounced a company
but, as they aged, they saw that the issue agreement and, following this denunciation,
of succession was being raised and that young maintained the payment of a bonus but
people would not invest in the union if they did prorated it for part-time employees. Action
not end the discrimination they were subjected was then taken but the discrimination card
to. They therefore had to fight against their was not played. While the case could have
apprehension to bring an action to defend been handled from the perspective of indirect
their own interests and to claim financial discrimination, it was not handled from this
compensation in this respect. perspective but with the tools of “classical”
employment law on the consequences
In the case of the miners of 1948, two triggers
of a termination of an agreement. The women
are identified: the first emerges, again, through
were successful. It was thus possible to win the
the concept of transmission. The victims were
case without playing the discrimination card.
disappearing and the miners realised that
despite the fact that they felt ashamed about This latter illustration shows that there
having been dismissed, they were passing this is another trigger for class action, the meeting
story on to their children. It was a question between the collective and a lawyer who
of regaining their dignity by fighting before they meets three criteria for this mobilisation
disappeared (the ‘fight of the Mohicans’ that to become an anti-discrimination class action:
Tiennot Grumbach talks about26). Thus, the
case was brought before the employment 1/ a lawyer specialising in employment law
tribunal 60 years later. The second trigger
is the creation of the HALDE, which made 2/ who uses the tools to combat discrimination
it possible to identify somebody likely to play
a role in the fight against the discrimination 3/ who is a militant lawyer, in the sense that
to which they had been subject and to generate he also sees the law as a tool for combating
a mediation procedure. It was following systemic dysfunction.
the failure of this mediation that they referred
the matter to the courts.
15Proceedings | Study day 24 November 2021 · 2022
Talking to the lawyer will allow an action ACTION BY MOROCCAN RAILWAY WORKERS AGAINST SNCF.
to be constructed from a collective/class FROM SOCIAL STRUGGLE TO LEGAL BATTLE.
action perspective, the purpose of which is not
only to obtain compensation for all members VINCENT-ARNAUD CHAPPE
of the group discriminated against but also Sociologist, CNRS, CEMS-EHESS
to obtain the necessary measures to put
an end to the failures. NARGUESSE KEYHANI
Often, it would be simpler for lawyers Lecturer in Political Science, Université
to add together individual cases before the Lyon 2, Triangle, IC Migrations
employment tribunals, rather than taking the
class action. In this case, however, systemic We are going to talk about the action taken
discrimination continues. Class action is new by Moroccan railway workers against
and is therefore complicated and onerous SNCF, which led to SNCF being convicted
to implement. This means departing from for discrimination on grounds of nationality.
an individual logic, including procedurally, We observed this action as social science
which is currently very complex given the researchers.
novelty of the tool for everyone, including In the 1970s, nearly 2,000 Moroccan railway
the judge. The employee whose case is used workers were recruited by SNCF, most of the
to illustrate the class action may feel that the time directly on site in Morocco. They were
procedure is slower than if he or she had acted then “shipped” to France and distributed
alone in an industrial dispute. between different stations to work on the
But we see the collective being built because rails. From the outset, due to the existence
employees get several advantages with class of a nationality clause, they are recruited with
action, besides the fact that it is not them who a status other than that of the permanent
has to take action, but the union, they work framework. This status thus implies less
collectively and for the others, the group. favourable working conditions, particularly
with regard to career development, salary,
They know that although they dared to bring entitlement to occupational health, etc.28
their case to illustrate the action taken by the
union, others do not: they therefore work From the outset, the situation was unfair due to
for their colleagues and have a real sense the conditions for recruitment of non-nationals
of pride in choosing this action. This is also the and the existence of a nationality clause within
reason for class action: to allow access to the the company. The first claims, identified
judge when employees do not dare individually as a result of interviews and work on archives,
to take action27 against the discrimination they were brought in the 1970s. Some railway
are subjected to. Another key aspect is that workers asked their station manager,
they know that with class action they are using a French colleague, a union colleague,
a tool that attacks the causes to stop failures and so on, to try to understand why their
in the future, rather than just compensating situation was different.
them. They are having an influence on the It was especially at the end of the 1990s that,
company of tomorrow, a company that through a local association (Ismaïlia) that
no longer discriminates. brings together Moroccan railway workers
Trade unionists on the ground also want in the north-east of Ile-de-France for other
to take advantage of the tool of class action, purposes (help with homework for children,
to bring it to life and to make it part of the legal for example), collective claims would be
culture. It is also a trade union policy tool. formulated. The members of the association
questioned the Minister of Transport in the
early 2000s when the first of them came
16Proceedings | Study day 24 November 2021 · 2022
to retire and discovered the extent of the to the meeting of some of the Moroccan
inequalities. These first retirements were railway workers and the professor of law, also
thus a turning point in awareness and thus Moroccan, Bendali. He helped to relaunch
in mobilisation. The association, created for the case before the courts, more precisely
other reasons originally, provided support for before the employment tribunals, highlighting
the preliminary questioning of political figures. the issue of the loss of monetary gain due
to discrimination. The fight would last ten
However, it should be reiterated that since
years, with an intermediate victory in 2015,
the 1980s and 1990s there had been a timid
and final victory in 2018, which recognised
but existing trade union takeover by CFDT
discrimination on the grounds of nationality
Cheminots, which then looked at these cases,
and demanded financial compensation
not in relation to nationality, but rather in terms
calculated according to each of the railway
of the statutory and contractual inequalities.
workers’ careers.
The claims were more related to non-access
to the status. One possible solution then This mobilisation involved a configuration
consisted of encouraging the railway workers of different players:
to apply for citizenship to open negotiations
• Professor Bendali, the central figure and
on an ad hoc basis and to allow tenure of those
resource, who built the entire strategy;
who had been naturalised.
• The lawyers who succeeded one another,
At the beginning of the 2000s, the chairman
with a difficult place in this case, because
of the Ismaïlia association, a former Moroccan
they were often restricted to pleading before
rail worker with trade union experience, with
the judges, without the possibility of changing
another statutory railway worker, was then
the strategy;
going to engage in information work at national
level. This “station tour” seems to have been • The association Ismaïlia, which acted as
fundamental. It provided a lot of information an intermediary and sometimes as a buffer
and a census of the persons concerned. between the railway workers and the legal
It was carried out with the support of several professionals. It organised legal clinics and
Sud-Rail trade union activists who played collected documents to constitute the files;
a central role. • The Sud-Rail trade unionists, who continued
The railway workers met at the labour to provide remote support by making material
exchange on a regular basis for information support available, but who doubted the
purposes, but also to take heed of the size “political” meaning of this case.
of the group and its ability to mobilise. Mobilisation also faces constraints related
This mobilisation led to the opening to the judicial process: length of the procedure
of negotiations in 2004. (although the health of the railway workers is
In the mid-2000s, there was a total shift from poor), the highly technical nature of the judicial
social struggle to legal battle. This refocusing processes that causes a lot of misunderstanding
can be explained by the disappointment and/or miscommunication amongst the railway
of some railway workers in the context of the workers. Within this framework, the fight
agreement negotiated in 2004: it regulated is largely delegated to the legal professionals
a number of pension issues, but said nothing who know how to move within this complex
about discrimination. Some of the railway arena, while the railway workers are kept away.
workers thus remained dissatisfied with the In this climate, the collective will experience
results of the union mobilisation. many tensions that will weaken it, testifying
to how difficult it is to mobilise a group
However, legal action would take time to
of 800 people over the long time.
organise. It started in an ad hoc manner thanks
17Proceedings | Study day 24 November 2021 · 2022
The central issue of money is an additional not only for them to become aware of what has
complexity factor. This involves both the happened, but to highlight common problems,
issue of compensation for victims and the and to document and dissect structural
remuneration of the legal professionals discriminatory processes. Lawyers, with
accompanying them. The group faced major their expertise, seek to understand what the
conflicts, which went as far as breaking it in discrimination involves, in order to tackle its
2018, on the question of the fair recognition causes. Class action aims to stop the failure29:
and remuneration of each individual’s work. it is a question of identifying discriminatory
These conflicts are in contrast with the first processes for the judge to put in place actions
phase of mobilisation and the voluntary to eliminate them.
engagement of the trade unions.
The purpose of the meetings is to
Despite these difficulties, the impact of this gather stories and evidence. This is not
mobilisation must not be underestimated. straightforward because the work involves
It allowed the construction of collective a lot of spoken word, regardless of the
and political meaning, which emerged in the company, and there is a lack of data on HR
interstices of the trial, in the corridors, in front processes that are not necessarily transparent.
of the cameras, in the relations forged with
On the other hand, we are often faced with
anti-racism associations.
indirect discrimination, of which it is not
Even though this mobilisation was painful easy to raise awareness. Thus, it is through
in some respects, it allowed a story to be numerous exchanges with and above all
written that was common at two levels: around between clients that some have become
a narrative shared by all these railway workers aware that the refusal by their employer
of institutional discrimination experienced of their request for mobility, the absence
in a similar way for everyone, and also around of progression, the fact that on returning from
the narrative of pride, victory, a collective maternity leave they are in branches where
fight for official recognition and redress there is no possibility of progression, etc.
for discrimination. This makes it an important were linked to the fact that they were women.
step in the history of post-colonial struggles It is by exposing their experiences that these
in France. collective treatments and their discriminatory
roots emerged.
THE ORDEALS OF THE COLLECTIVE IN LEGAL PROCEEDINGS. This stage also requires an analysis
of agreements, social data, social analyses and
CLARA GANDIN comparative status reports, making it possible
Lawyer, Paris Bar, 1948 Avocats to compare access to training courses,
calculate wage and progression differences.
Making legal work accessible to all is It is a question of using all the available figures
complicated. Legal professionals have a dry to reveal how women, or trade unionists,
grammar and complex procedures. The work are treated less well than others. The study of
of the lawyers consists of building a case with equal opportunities agreements in a company,
the clients, but also managing the hardships for example, makes it possible to see to what
generated by the action, which itself cements extent the company is actually invested in the
the group. fight against discrimination against women.
The construction of the file with the clients As regards the construction of the collective,
obviously involves, first and foremost, it seems preferable to rely on a single trade
meetings with all those involved. Exchanges union organisation. This choice, which
with clients and between clients are essential, was ours, is questionable but it has proved
18Proceedings | Study day 24 November 2021 · 2022
to be effective, and made it possible to avoid In addition to these tests, the collective must
the union divisions that the employer could face adverse strategies the sole purpose
use to harm the action. In order to solidify of which is to make them fall, such as:
this support, several levels of the trade union • Stigmatisation of the union: this involves
organisation need to be brought together: pitting the other trade unions against the
trade union, federation, etc. The aim is for union behind the action. It is a strategy that
trade unions to strengthen each other in the can be effective against the employees at the
face of pressures, in the company, outside the origin of the action, and it can deter other
company and at confederal level. employees from joining it;
Finally, financial support for victims and/or the • Alienation of lawyers by accusing them
financing of actions remains a crucial point of exploiting the trade unions. This strategy
that the union cannot assume alone. can be extremely sound. The company ended
Faced with the hardships resulting from up refusing to allow the presence of lawyers
collective action, it is essential to have a strong in the discussions;
collective, because this collective will have • Denial of the collective aspect and will
to face a triple dispossession: to systematically bring the discussion back
• Individual dispossession of the file: from to individual cases. In the Safran case,
this worked because the judge considered
individual cases, a process is illustrated that
that the class action was an accumulation of
is intended to be collective. The individual
individual cases and he did not once mention
narrative is then lost in the crowd and
the thirty pages on the discriminatory
becomes one example among others.
collective processes.
All the more so since during the hearing
there is no room for clients, the employees. The lawyer is there to reassure clients, clarify
These are proceedings before the court, the complex terms and procedures, manage
written, sometimes before a judge who is not the discomfort of the collective, the anger
interested in the human aspect of the case. generated by the adverse defence strategies…
The lawyer is a facilitator so that all the The hearings, which consist of defending
victims can speak through him; in 15 minutes a file that has taken months
or even years to build, which concerns more
• Dispossession in terms of schedule. than 30 or 40 people, can be extremely
The Safran case, for example, took a year frustrating for the collective.
and a half for exchanges, conclusions and
arguments between lawyers. The exchanges Finally, it must be noted that creation of the
dragged on. A year and a half of preparations, collective also has positive aspects. As well as
plus delays in the event of appeals, the feeling of being listened to and recognised,
is particularly long. Class action must victims who decide to mobilise collectively
be maintained despite this temporality, take on active roles in the fight against
discrimination. Class action involves working
which may be a source of discouragement;
for others, taking back some control and
• Dispossession of the decision-making reversing the balance of power. It is important
process insofar as decisions need to be taken for the victims to be aware of this.
together, respecting the rules and processes
Class action allows the collective to become
of all stakeholders. For example, trade unions
part of a broader, national, societal and global
are used to voting “by majority”. This calls
political struggle. Media coverage plays
for a great deal of trust between clients,
an important role here, as it confirms the
unions and lawyers.
merits of the struggle and consecrates the
commitment and the justice of the cause.
19Proceedings | Study day 24 November 2021 · 2022
PART II
THE TRANSLATION INTO LAW
OF DISCRIMINATION:
PROVING DISCRIMINATION
FOREWORD This is a major tool for victims, because,
from the moment they have a bundle
SARAH BENICHOU of evidence, the respondent must justify
Assistant to the Director, “Promotion the measures that they have taken objectively
of Equality and Access to Rights” Department, and, if they fail to do so, discrimination will be
Defender of Rights characterised.
Over the years, the evidence mobilised has
While the first round table was devoted to the
evolved. Alongside conventional means
people involved in collective action, this second
(testimony, writings, etc.), new tools such
round table addresses the stage of proof, of the
as testing or statistical comparisons
characterisation of discrimination in law. This
have emerged, which reveal differences
process sometimes reveals, from individual
in treatment and their discriminatory basis.
reports, collective discrimination.
These tools have also revealed more collective
Gathering evidence remains a difficult step, or systematic discrimination based on trade
one that is not always successful. union membership, gender or origin.
Before the criminal courts, it is always The situation testing technique, used twenty
difficult and complicated to demonstrate years ago to highlight discrimination based
discrimination, due to the level of evidence on origin on the doors of nightclubs, is now
required, particularly with regard to the used in a much broader manner, to reveal
intentional nature of discrimination, by criminal discrimination in recruitment, housing
law and also by judges. However, there have or access to care for a number of criteria31.
been significant advances before the civil and
Anti-discrimination protagonists have also
administrative courts, with victims benefiting
been able to take advantage of the panel
from the shift of the burden of proof30. This
comparison method to update career
arrangement, which does not constitute
discrimination. Created at the outset
a reversal of the burden of proof, has been
to demonstrate trade union discrimination
in force for twenty years: the applicant must
by François Clerc of CGT, this method is now
first present facts allowing for the presumption
also used to demonstrate gender-based
of discrimination.
discrimination.
However, it has not always been easy to have
these new tools and their probative value
20Proceedings | Study day 24 November 2021 · 2022
recognised by the courts. The Defender
of Rights participates in this legal education
by mobilising a variety of legal evidence
and analysis in its files.
All those involved in the fight against
discrimination, such as trade unions, labour
inspectorates, but also, of course, lawyers,
researchers and equality promotion bodies,
such as the Defender of Rights, have specific
roles and specific skills to mobilise for
this fight.
The challenge is to combine, with all
of these players, all these levers to build
the body of evidence, particularly for cases
of collective or even systemic discrimination,
and to construct the litigation strategy.
UNDIGNIFIED WORKING CONDITIONS, MAFIA
AND TRAFFICKING: THE ROLE OF THE LABOUR
INSPECTORATE IN ACTION.
MARILYNE POULAIN
CGT Trade Unionist, UD Paris
Since 2007-2008, I have been one of the CGT
activists who have accompanied the struggles
and strikes of undocumented workers.
The CGT and other organisations have
mobilised for these strikes.
The first objective of these strikes was
to denounce the working conditions
of these workers and to enable them to find
solutions to leave a complex and precarious
administrative situation behind.
The mobilisations carried out in 2007, 2008
and 2009 led to circulars and texts, which
are certainly imperfect, but which allowed the
regularisation of workers without residence
permits. One can cite in particular the circular
of November 201232, which governs the
exceptional approval for a residence permit Maryline Poulain, CGT trade unionist, UD Paris
through work but also specifies the power that
is given to the employer to regularise or not its
employees without a work permit.
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