Sexist comments: grounds for dismissal for misconduct, regardless of the employer’s alleged previous tolerance on the subject

Cass. soc., June 12, 2024, n° 23-14.292

An employee was given a precautionary layoff, then summoned to an interview prior to possible dismissal. He was then heard by the convention council, to which the employer submitted a proposal for a one-month disciplinary layoff.

Finally dismissed for misconduct, the employee contested this termination before the competent courts.

The Court of Appeal ruled that the dismissal was without real or serious cause, on the following grounds:

– Admittedly, the employee had made insulting, humiliating and degrading comments of a sexual nature to two female colleagues ;

– However, the employee had already made similar remarks to them in the past, and his superiors, who had been informed, had not punished him;

– In addition, the employer initially intended to lay off the employee for disciplinary reasons, since the dismissal had been requested by a union representative on the collective bargaining committee.

The Court of Appeal thus considered that the dismissal was disproportionate.

The Court of Cassation disagreed: it considered that the comments made by the employee were sufficiently serious to justify disciplinary dismissal, regardless of the employer’s alleged tolerance of the same type of behavior in the past.

This decision is in line with the current legal and jurisprudential trend to take a very firm stance against sexual and sexist remarks made in a professional context.

And, in this type of situation, any managerial shortcomings on the part of the employer, or failure to comply with his or her safety obligation, can in no way mitigate the seriousness of the misconduct committed by the employee who made such remarks.