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The ambiguous attitude of the recipient of sexually explicit texts is exclusive of sexual harassment

French Supreme Court, September 25, 2019, n° 17-31.171 F-D, S c/Sté Transdev Île-de-France

In this case, an executive employee repeatedly and durably sent inappropriate and pornographic texts to one of his subordinates between 2011 and 2013. The latter alleged to have answered to these messages by game. Several employees reported the ambiguous behavior of seduction adopted by the employee.

The employer dismissed the manager for gross misconduct based on sexual harassment. The latter challenged his dismissal before the Labour court.

The Court of Appeal held that the sexual harassment was not characterized given the ambiguous behavior adopted by the employee. The dismissal could therefore not be based on a gross misconduct. However, the Court of Appeal considered that the dismissal was nevertheless justified for a serious reason because the employee held on executive role in a company of more than one hundred employees, had repeatedly and for two years sent texts with inappropriate and pornographic content to an employee he supervised, used his professional phone to do so, and thus lost all authority and credibility in the performance of his management function, which was inconsistent with his responsibilities.

Before the French Supreme Court, the manager argued that the grievances alleged against him, namely the use of his professional phone to exchange private texts with another employee, were part of his personal life which excluded the characterization of a disciplinary misconduct, particularly where the employee acknowledged that she had enjoyed answering these messages and had acted in an ambiguous way.

The French Supreme Court upheld the Court of Appeal’s finding that the employee replied to the sexual connotation texts sent by her supervisor and adopted a familiar behavior of seduction at the workplace, which excluded of any sexual harassment. The French Supreme Court also held that the grievances alleged against the manager were related to the professional activity and could thus justify a disciplinary dismissal.