Does France practice 'diversity, equity and inclusion'?

French politicians and business leaders have blasted the United States for 'interference' after a letter sent to a number of French companies doing business with the US became public.

In the letter, the US embassy asks partner French companies to certify that they "do not practice programmes to promote diversity, equity and inclusion", known in the US as DEI which seeks to facilitate hiring and respect for people from under-represented groups.

France's ministry for foreign trade responded, saying that "US interference in French companies' inclusion policies is unacceptable, just like its unjustified tariff threats."

On Monday, the delegate minister over foreign trade, Laurent Saint-Martin, told the French press that the letters were tantamount to asking companies "to renounce the inclusion policies" that are in line with French or European law -- "particularly on equality between women and men in the fight against discrimination and racism, and the promotion of diversity to help people with disabilities."

On Tuesday, Denmark called for a united EU response to US Embassy warnings to European companies against using diversity programmes, which Danish industry minister Morten Bodskov told AFP "can only be seen as yet another attempt at an American trade barrier."

So what does French law say about DEI?

Technically, 'DEI' (as it is conceived of in the United States) does not exist in France, and in some cases the American approach to DEI would actually break with French rules of secularism and their colour-blind approach.

The closest concept might be discrimination positive (positive discrimination, or affirmative action) which is often referenced when discussing 'inclusion' policies. However, legal experts have warned that this is not an official concept in French law. 

Aurore Bergé, the minister in charge of anti-discrimination, told France 24 "In French law, there is no such thing as 'positive discrimination'. However, there is a law on equality between women and men and equal pay, and there are associated social rights.

"There is a principle of non-discrimination, obviously, whether it be discrimination based on origin or discrimination against LGBT people."

One of the three key values of the French republic is 'equality', and as Bergé explained, it is taken seriously in the laws governing workplace conduct.

There are strict penalties for discrimination, whether that be on the basis of sex, gender identity, race, religion, age, pregnancy, political views, union involvement, etc. You can find the full list of 25 criteria for discrimination on the Service Public website.

French law also recognises two types of discrimination: 'direct' (eg firing an employee for going on strike) and 'indirect' (something that would put some people at a disadvantage in comparison to others, like an internal company rule allowing only men to remain at the company after the age of 50).

There are very few instances where recruitment could be 'discriminatory' and the company must meet strict rules. Examples of this might be refusing to hire workers who are either too old or too young for health and safety reasons, or reserving a job only for one gender in the case of modelling or acting.

French companies are not permitted to reference race, ethnicity or religion in hiring, so these aspects of American 'DEI' would automatically not be allowed.

In fact, for public officials - who are seen as representatives of the French state - wearing overt signs of religion is not permitted while on the job. Private companies sometimes have the power to institute 'secularism' rules surrounding religious symbols, but there is a higher bar for proving the necessity of such actions.

READ MORE: IN NUMBERS: What the French really think about race and racism

What might be some examples of 'positive discrimination' in France?

Age - Companies with more than 50 employees are required to set up a 'senior plan' to facilitate recruiting more workers who are over the age of 50. The specifics of the 'senior plan' will depend on the company.

People with disabilities - In 1987, France passed legislation requiring that companies with more than 20 employees ensure that at least six percent of employees are people with disabilities. 

Workers with disabilities also have a right to request an 'RQTH' (reconnaissance de la qualité de travailleur handicapé) which is a certificate from the French government that guarantees certain material and financial assistance for disabled workers.

Gender - In 2012, France passed the loi Sauvadet which imposed gender parity quotas (a minimum of 40 percent for both sexes) within the French civil service for senior and management level positions. This applied across public administration to include local authorities, hospitals, public higher education and French départements. 

In the case of non-compliance, local governments (depending on size) can be fined up to €90,000, which notably happened to Paris city officials after the capital was found to have broken gender parity in 2018 staffing. 

The Paris mayor, Anne Hidalgo, said she was faulted because 11 women and only five men were named to management positions in city hall in 2018, meaning that 69 percent of the appointments went to women.

French legislation also requires that 'employee representative' bodies be gender equal. These include union and staff representatives, as well as the comité d'entreprise (works council).

The country also passed legislation in 2018 that required companies with more than 50 employees to calculate and publish their 'gender equality index' to prevent pay disparities based on gender.

Most recently, in 2021, France passed the 'Rixain law' which imposed gender quotas for management positions in large companies. By 2030, women must represent at least 40 percent of executives in these companies, or the company will face a financial penalty.

Race - when it comes to race and ethnicity, the situation in France is a bit different, due to the country's official 'colourblind' policy. 

In France, if you fill out an official form, including the Census, you will never be asked for your ethnicity or religion, as France does not allow for the official collection of ethnic/ racial statistics or data. The same goes for applying for a job. 

According to France's Conseil Constitutionnel, collecting ethno-racial data would violate principles set out in Article 1 of the Constitution which states that "[France] shall ensure the equality of all citizens before the law, without distinction of origin, race or religion."

It is possible for French companies to attempt to determine whether there is bias in hiring practices, like experimenting with 'anonymous' applications to remove indicators of race or ethnicity, but they would not be able to set a quota for a certain number of people from one specific racial background.

READ MORE: ANALYSIS: Is France really 'colour-blind' or just blind to racism?

Response to the US Embassy letter

Many French companies reportedly do not plan on replying at all to the letter from the US Embassy. 

Aurore Bergé told the French press that "[The companies] don't have to respond, in fact, to a sort of ultimatum laid out by the US Embassy in our country."

Geoffroy Roux de Bézieux, head of the French employers' association, Medef, told BFM Business, that the letter was "very bizarre and totally unacceptable (...) no French company should give in to this kind of blackmail."

According to French daily Le Parisien, companies that comply with the US Embassy's demands could even be acting "illegally from a French perspective", as the above policies supporting the inclusion of women and people with disabilities are obligatory.

Christopher Mesnooh, an American business lawyer at the firm Fieldfisher, told AFP that in any case, the US administration cannot require French companies to comply with US law. 

"There is no legal extraterritoriality that could emanate from this letter in the sense that French companies will now be obliged to apply US labour or federal laws against affirmative action," Mesnooh said.