France became the 14th country worldwide to pass marriage equality into law, after French President François Hollande signed the bill into law on May 18th, as the Constitutional Council (« Conseil constitutionnel ») has rejected claims of unconstitutionality from right-winged legislators. The statute was adopted amid mass demonstrations by opponents of marriage equality and considerable political debate.
As of today, eight other countries in Europe currently allow same-sex couples to marry – Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden.
By granting same-sex couples the right to marry as well as adoption rights and by no longer linking certain benefits to the status of heterosexual married couple, the « marriage for all » statute (« mariage pour tous ») will inevitably have an impact on employment law. Human resources departments will therefore have to adapt to this new piece of legislation, leading to additional expenses.
I. Immediate Consequences
Family leave days (« Congés familiaux »)
The creation of new social rights will allow same-sex couples to benefit from any leave in link with the recognition of their status as a married couple. For instance, according to Article L. 3142-1 of the French Labour Code, same-sex married couples will now benefit from:
a 4-day leave for their wedding;
a 3-day leave for the birth or the adoption of a child;
a 2-day leave in the event that their partner or child dies;
a 1-day leave for the wedding of one of their children;
a 1-day leave in the event that their mother, father, brother, sister, mother-in-law or father-in-law dies.
Those days do not entail a wage decrease and will be considered as effective worked days.
Adoption leave (« Congé d’adoption »)
Just like paternity leave grants a right to an 11-day leave, adoption gives a right to a leave to the adopting employee of:
10 weeks in general;
18 weeks when the adoption brings the number of children in the household to 3 or more;
22 weeks in the event of multiple adoptions.
Such a change will need to be taken into account at the HR level, since it will be necessary to accommodate potentially more employee absences.
Touch-ups to the statutory pension regime
In addition to allowing same-sex couples to benefit from a fraction of the spouse’s pension after his death, the statute leads to an increase of the statutory pension insurance period for same-sex couples.
In France, four additional trimesters are granted for the birth of the adoption of a child, as well as for his education. As a general rule, in the absence of a choice, the trimesters are credited to the mother. For same-sex couples, there will be an equal division between the two partners.
Potential changes in the order of dismissals
In France, the redundancy procedure varies depending on the number of redundancies considered, the size of the business and the timeframe within which the redundancies take place.
In any case, the employer must establish an order for the redundancies based on criteria defined either by a collective agreement or, failing that, by him after consultation of staff representatives. These criteria are usually in relation with the employee’s family responsibilities, seniority, specific social difficulties or professional abilities. As long as all statutory selection criteria are considered, the employer can give priority to one of these criteria.
In such a context, the « marriage for all » statute will therefore allow same-sex couples to assert their married status as a way to avoid being laid off, under the family responsibilities criterion.
A necessary adaptation of collective agreements
Numerous collective agreements, company agreements or common practices grant specific rights to married couples. Now, companies that granted bonuses for marriage will have to grant said bonuses to same-sex couples.
Many of these agreements still mention « the wife and husband » and « father and mother » and will need to be modified; the same will go for the Labour Code and the Social Security Code.
The creation of a brand new right
As of today, homosexuality is still punished in approximately 60 countries, with sentences ranging from prison for a few months to life, physical abuses, deportation or forced labour.
Therefore, the statute creates a right for all homosexual employees that is not limited to marriage for all but aims at protecting homosexual employees against a transfer in a state which incriminates homosexuality. The new Article L. 1132-3-2 of the Labour Code holds that no employee can be sanctioned, dismissed or discriminated due to his sexual orientation for having refused a geographical transfer in a country incriminating homosexuality.
II. Privacy issues
According to a study carried out in 2011, 67% of homosexual employees abstain from revealing their sexual orientation to their employer and their colleagues. Here, in some cases, the employee will have to reveal his sexual orientation in order to benefit from given rights, raising the question of the privacy of the employee’s personal information. In most cases, when the worker claims his right to take a given leave, he will have to provide written proof to justify the situation, according to Article L. 3142-1 of the French Labour Code.
> The implications of the « marriage for all » statute at the HR level are therefore numerous. Although it is possible that some employees will continue hiding their sexual orientation at the expense of losing advantages to which they are entitled, it is also possible that the employees will no longer hesitate to claim damages on the basis grounds of discrimination based on their sexual orientation. Indeed, the French « Cour de cassation » recently held for the first time ever that an employer (a rather large bank) who had discriminated an employee during his career because of his sexual orientation should pay 600 000€ (approximately $785,000) in damages.
The homophobic atmosphere added to the fact that the employee was the only one to not be promoted to a position for which he was qualified and for which he had applied for 14 times constituted sufficient grounds for presuming a discrimination based on sexual orientation.