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THE NORMATIVE AND CONCEPTUAL FRAMEWORK
Equality and discrimination
The principle of equality, proclaimed in article 1 of the Declaration of Human and Citizens’ Rights 1789 and article 1 of the Constitution of 1958, is at the root of the French legal system. The right to equality and non-discrimination has been developed by the international commitments made by France. Equality in the French tradition is above all formal, but numerous efforts are being made to improve practical equality. The Constitutional Council stated in 1979 that different situations result in different solutions: “Whilst the principle of equality before the law implies that similar solutions are applied for similar situations, this does not mean that different solutions cannot be offered for different situations.” Although positive discrimination is unusual in France, the Council of State has indicated that it could be accepted in certain cases in order to reduce inequality (1996, public report n° 48, p. 86 et 91).
Thanks to jurisprudence, indirect discrimination and the removal of the burden of proof have entered French law. The social chamber of the Supreme Court of Appeal decided on 9 April 1996 that less favourable provisions for part-time work constituted indirect discrimination against women. The same court decided that, in the case of discrimination, it was up to the defendant to prove that he had not conducted acts of discrimination, since the plaintiff simply had to provide a number of indications pointing to discrimination. This was incorporated in article L. 122-45 of the labour code by the law 2001-1066.
Although article L. 122-45 refers to handicap, there are still very few cases of discrimination based on handicap brought before the courts. However, the reasoning would no doubt be similar to that applied to other cases of discrimination.
Equality and discrimination
The principle of equality, proclaimed in article 1 of the Declaration of Human and Citizens’ Rights 1789 and article 1 of the Constitution of 1958, is at the root of the French legal system. The right to equality and non-discrimination has been developed by the international commitments made by France. Equality in the French tradition is above all formal, but numerous efforts are being made to improve practical equality. The Constitutional Council stated in 1979 that different situations result in different solutions: “Whilst the principle of equality before the law implies that similar solutions are applied for similar situations, this does not mean that different solutions cannot be offered for different situations.” Although positive discrimination is unusual in France, the Council of State has indicated that it could be accepted in certain cases in order to reduce inequality (1996, public report n° 48, p. 86 et 91).
Thanks to jurisprudence, indirect discrimination and the removal of the burden of proof have entered French law. The social chamber of the Supreme Court of Appeal decided on 9 April 1996 that less favourable provisions for part-time work constituted indirect discrimination against women. The same court decided that, in the case of discrimination, it was up to the defendant to prove that he had not conducted acts of discrimination, since the plaintiff simply had to provide a number of indications pointing to discrimination. This was incorporated in article L. 122-45 of the labour code by the law 2001-1066.
Although article L. 122-45 refers to handicap, there are still very few cases of discrimination based on handicap brought before the courts. However, the reasoning would no doubt be similar to that applied to other cases of discrimination.
基准和概念性框架平等和歧视平等的原则, 宣告在文章1 里人和Citizens.. 的声明纠正1789 年并且文章1 1958 年的宪法, 是于法国法制系统的根。平等和non-discrimination 的权利由国际 承诺开发由法国做。平等在法国传统是高于一切正式的, 但许多努 力正在被做改进实用平等。1979 年宪法委员会陈述不同的情况导致 不同的解法: ..Whilst 平等的原则在之前法律暗示相似的解法是应 用的为相似的情况, 这不意味不同的解法不可能被提供为另外 situations... 虽然正面歧视是异常的在法国, 状态委员会表明它 能被接受在某些案件为了减少不平等(1996 年, 公开报告 n.6a 48, p. 86 et 91) 。由于法律学, 间接歧视和证明负担的撤 除进入法国法律。至尊申诉法庭的社会分庭决定1996 年4月9 日较 不有利供应为兼职工作构成间接歧视反对妇女。同样法院决定, 在 歧视情况, 它是由这个被告决定证明他没有举办歧视行动, 因为这 个原告必须简单地提供一定数量的征兆指向歧视。这被合并在文章 L. 122-45 里辛苦代码由法律2001-1066 。虽然文章L. 122-45 提 到障碍, 仍然有非常歧视少量案件根据障碍带来在法院面前。然而 , 这个推理没有疑义与那是相似向歧视其它案件申请。