Do consensual intimate relationships rule out sexual harassment?

Sexual harassment at the time of the incident consisted of repeated sexual statements or behaviors that either violate dignity or create an intimidating, hostile or offensive situation. Any form of serious (even non-repeated) pressure for the actual or apparent purpose of obtaining an act of a sexual nature also constituted this offense.

The burden of proof is shared. The employee must provide evidence suggesting the existence of sexual harassment, and the employer must provide objective evidence to the contrary.

In the present case, an employee had been hired as an accounting assistant on 22 February 2016. On 25 October 2016, she was placed on leave and brought an action before the Labor Labor Court on 14 December 2016 for sexual harassment. She seeks judicial termination of her employment contract.

The employer denies any sexual harassment. According to him, an intimate and sexual relationship in the private sphere was freely consented to by his employee, in particular during a two-day stay in Paris.

The Court of Appeal examined all the evidence presented by the employee: the employer voluntarily created the circumstances allowing it to approach the employee in order to obtain sexual favors from her. The employee did not initiate the stay in Paris. The employer made every effort to create physical intimacy with her.

In the light of those factors, the Court of Appeal finds that they suggested the existence of sexual harassment without the employer being able to adduce objective evidence to the contrary.

It therefore orders the judicial termination of the contract which produces the effects of a dismissal which is null and void.

The Court of Cassation agrees with the Court of Appeal.