Europeanization or National Specificity? Legal Approaches to Sexual Harassment in France, 2002–2012

• DOI: http://doi.org/10.1111/lasr.12313
• Date: 01 March 2018
• Published date: 01 March 2018

Europeanization or National Specificity?

Legal Approaches to Sexual Harassment

in France, 2002–2012

Abigail C. Saguy

This paper examines whether—and if so how—a 2002 European Directive on

sexual harassment has changed the practice and content of sexual harassment

law in France. It finds that the European Directive shaped how Frenchcourts

address sexual harassment and informed the content of a new sexual harass-

ment law France passed in 2012. Yet,its influence has been mediated by domi-

nant national attitudes about: (1) the nature of sexual harassment, (2) which

legal institutions are best suited to address it, and (3) the character of women

who claim to have been harassed. This paper further suggests that news

reporting on a 2011 arrest of a French politician for sexual assault led to more

positive attitudes about sexual harassment victims.

There is a lot of talk lately about the extent to which the Euro-

pean Union has eroded member states’ national autonomy. This

concern came to a head in June 2016 when a majority of Great

Britain’s citizens voted to leave the European Union in a referen-

dum known as “Brexit,” or British Exit. Proponents of the leave

campaign argued, among other things, that the EU threatened

British sovereignty (Lee 2016). Speaking in favor of Brexit, L on-

don Mayor Boris Johnson told a crowd of 200 people “This is

not just the time to unshackle Britannia from her chains—though

it certainly is—it’s a time to speak up for freedom across the whole

continent” (Wilkinson and Jamieson 2016). Yet, independent of the

question of representation and control over European policy, it

remains unclear the extent to which the European Union is bring-

ing legal homogeneity to nation states. To shed light on this ques-

tion, this paper examines the extent to which a 2002 European

Directive shaped how sexual harassment law is practiced in France.

This research received funding from the UCLA Faculty Senate and the Partner Univer-

sity Fund, a program of FACE.Thanks to the interview respondents and especially Marilyn

Baldeck and Catherine LeMagueresse for their time, patience, and wisdom. Thanks to

Laure Bereni, Gail Kligman, Eric Fassin, Liora Israel, Michael Stambolis-Ruhstorfer, Mal-

lory Rees, Claire Saas, four anonymous LSR reviewers, and the LSR editors for helpful

feedback.

Please direct all correspondence to Abigail Saguy, University of California Los Angel,

Sociology, 264 Haines Hall, Los Angeles, CA 90064; email: saguy@soc.ucla.edu.

Law & Society Review, Volume 52, Number 1 (2018)

V

C2018 Law and Society Association. All rights reserved.

In September 2002, the European Union (EU) passed Direc-

tive 2002/73/EC (Zippel 2009), giving member states until Octo-

ber 5, 2005 to transpose the European guidelines into national

law (Le Magueresse 2005). The directive defined sexual harass-

ment as a form of “discrimination on the grounds of sex” that

specifically includes “any form of unwanted verbal, non-verbal or

physical conduct of a sexual nature [that] occurs, with the pur-

pose or effect of violating the dignity of a person, in particular

when creating an intimidating, hostile, degrading, humiliating or

offensive environment.” It directed nation states to shift the bur-

den of proof from the employee to the employer (Zippel 2009)

and to establish institutions that would provide “independent

assistance to victims of discrimination in pursuing their com-

plaints about discrimination,” conduct “independent surveys con-

cerning discrimination,” publish “independent reports,” and

make “recommendations on any issue relating to such discrimi-

nation.” At the time the directive was passed, there was specula-

tion about whether it would lead to national convergence in

sexual harassment laws or whether national legal, political, and

cultural differences would produce “a good deal of variation in

how EU Directives on gender equality are transposed by national

governments” (Zippel 2009: 144).

It is generally more difficult for member states to conform to

EU directives when preexisting legal practices differ in important

ways from European law (Zhelyazkova and Torenvlied 2011).

This was the case in France, which has largely addressed sexual

harassment via criminal—rather than civil—law and has defined

it as a form of sexual violence, rather than discrimination. By

examining the extent to which the 2002 European Directive has

informed both the practice of French sexual harassment law since

2002 and a new French sexual harassment law passed in 2012,

this paper contributes to a fuller understanding of how the Euro-

pean Union is shaping the practice and content of law in member

states.

Background: French Law

When the European Directive was passed, French treatment

of sexual harassment claims diverged from the Directive’s man-

dates, both procedurally and substantively. First, France did not

treat sexual harassment as solely a civil matter. Rather, its

Criminal Code contained a specific sexual harassment statute,

defining sexual harassment as “the act of harassing another with

the goal of obtaining sexual favors.” The French criminal

definition was narrower than the European definition, which

Saguy 141

evoked not only efforts to obtain sexual favors but also “any

form of unwanted verbal, non-verbal, or physical conduct of a

sexual nature” that has the purpose or effect of “creating a n

intimidating, hostile, degrading, humiliating or offensive

environment.”

Another notable difference between French and European

law was that, while the European Directive required that sexual

harassment be defined as sex discrimination, the French Criminal

Code defined sexual harassment as a form of sexual violence

(Roy-Loustaunau 1995). This was evident in the sexual harass-

ment statute’s location—in the section on sexual violence, follow-

ing the felony of rape and the misdemeanor of sexual assault

(Dekeuwer 1993). Each of these crimes are technically mutually

exclusive under French criminal law, with the difference between

sexual harassment and sexual assault being that only the latter

includes specific kinds of physical touching—such as forcibly kiss-

ing the victim or touching the victim’s genital area, breasts, but-

tocks, or interior of the thigh. The French criminal sexual

harassment statute has been located in the sexual violence section

since the law was first introduced in 1991, when it defined sexual

harassment more narrowly as: “the act of harassing another by

using orders, threats or constraints, in the goal of obtaining sex-

ual favors, by a person abusing the authority associated with his

professional position.”

French lawmakers dropped the requirement of abuse of pro-

fessional hierarchical authority in January 2002 to make the sex-

ual harassment law consistent with a new law on moral

harassment, which included peer harassment (Saguy 2003). This

revision, however, left intact the framing of sexual harassment as

sexual violence, not—as the European Directive would later

require—sex discrimination. Finally, this, like all French criminal

laws, was based on the presumption of innocence. But this hall-

mark of criminal procedure contradicts the terms of the Euro-

pean Directive’s mandate, which presumes a civil law context and

shifts the burden to the employer to prove the harassing conduct

did not occur.

Since 1992, France has also provided some civil law recourse

by prohibiting employers from dismissing, demoting, or other-

wise professionally penalizing an employee for having “submitted

or refused to submit to acts of sexual harassment” (Cromer

1995). The Labor Code, like the Criminal Code, has defined sex-

ual harassment as sexual violence, not sex discrimination. As civil

law, however, it is not constrained by the presumption of inno-

cence and, as such, could respond to the Directive’s mandate to

shift the burden of proof to employers.

142 Europeanization or National Specificity?