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The facts characterizing sexual harassment may be established by the disclosure of corroborating affidavits

In a decision of 5 December 2018, the French Supreme Court ruled that sexual harassment, which led to the dismissal for gross misconduct of the author of the facts, could be proved by the production of corroborating affidavits from the victims.

This decision is interesting for several reasons.

Firstly, it provides details on the facts likely to characterize sexual harassment. In accordance with the first decision rendered in this case (Cass. Soc. 3 December 2014, No. 13-22151), the French Supreme Court confirms that the questions asked about private life, the daily remarks about the physical aspect (“you are beautiful”) and the raw, ambiguous, inappropriate or intrusive remarks (“so when do we sleep together?” / “Be careful with the boys, do not talk to him, he is bad company, you’re a lamb surrounded by wolves”) and photographs taken without the employee’s knowledge constitute sexual harassment.

Secondly, the Court rules on the measures to be implemented in order to establish such harassment. The Court of Appeal had held that the victims’ statements lacked spontaneity since they had been submitted in the context of an interview with the author’s manager.

The French Supreme Court overruled this decision on the grounds that these motives were inappropriate to exclude the probative value of the affidavits, which were sufficient to demonstrate the facts characterizing the sexual harassment, without the need for an investigation.

French Supreme Court, 5 December 2018, n°17-24794