French legislation on combating discrimination on the grounds of sex includes fairly similar provisions in employment law (1.1.1) and civil service law (1.1.2) applicable to workers in the care sector.

Like education and social work, the healthcare professions are highly feminized. The feminization of the healthcare professions is a constant, as demonstrated by a 2005 study on “The feminization of the healthcare professions in France”.52 It affects all professions in the health, social and personal care sectors. The latest figures for 2023 from the Caisse nationale de solidarité pour l’autonomie (CNSA) put the number of professionals in the personal assistance sector at 1,362,300, 87% of whom are women.53

According to a 2019 survey54 on the care sector, 86% of nurses are women; 88% of care assistants are women; 94% of home helps are women. In the home help, support, care and services sector, the proportion of female employees is estimated at 95%, according to amendment no. 59 of 2023.

The majority of employees are women (82.3% in 2015 according to the DARES), with few qualifications (only 7.5% have more than a baccalaureate, compared with 38.4% of all employed people) and an average age higher than that of the working population (46 compared with 41).55

Women’s work in the care sector has been seen and organized as an extension of their activity within the family. Today, 67% of family careers are women.56

With the exception of certain occupations such as nursing, these are often less skilled than other occupations (e.g. care assistant or home help). Female workers therefore have few or no qualifications compared with the working population as a whole, and this has an impact on their pay, which is lower than that of working women as a whole. Low pay is exacerbated by the use of part-time work and the fact that women are less likely to be found in management positions, which, as in many sectors, are monopolized by men.57

Various institutions (INSEE, DREES, DARES) publish statistics and databases that have made it possible to calculate the proportion of women in care professions. However, the publications relate to specific professions or certain themes with different timeframes, which means that it is not always possible to obtain precise figures for the care sector as a whole or for the professions that interest us in this study (nursing, care assisting, home help). On the other hand, gender differences are common.

The databases studied present aggregated data, mainly at national and regional level.

Most databases are public and freely accessible. Some studies provide statistics to which explanatory databases are attached.

Data from the INSEE Références survey, Femmes et hommes, l’égalité en question, 2022, show that working conditions in the nursing and midwifery professions are intensifying or deteriorating. 75% of working people say their work is intensifying or deteriorating, 87% of them women.

A study by DREES on salaries in the hospital civil service58 has yielded some data. In 2021, the full-time equivalent net salary of women in the hospital civil service will average 2,459 euros per month, 19.6% less than that of men (3,058 euros). This gap is up by 0.5 points over one year, following a sharp fall the previous year (-1.5 points), as the COVID-19 bonus has mainly benefited occupations in which women are more heavily represented.

With equivalent status, the pay gap between women and men is much smaller, but persists: women earn on average 1.5% less among civil servants, 6.8% less among contract staff; the gap peaks at 14.3% among medical staff, as women are notably younger in this category. In total, for the same status, age, grade, hierarchical category and type of establishment, women receive 3.7% less than men, a gap that has increased by 0.3 points, following a 0.2 point drop in 2020. However, this gap cannot be interpreted as a measure of the differences in pay between women and men for the same job. Some of the residual differences are due to unobserved characteristics (seniority, experience, tasks performed, etc.). Furthermore, full-time equivalent pay is used to compare pay for an equivalent amount of work: it does not take into account differences in employment conditions (in particular the greater or lesser use of part-time work), which also contribute to differences in monthly earnings between women and men.59

A DARES study from 2023 provides statistical portraits of the occupations we have chosen to study, which we present below.

In 2017-2019, the “Healthcare assistants” family of occupations will include 727,000 people, 91% of whom will be women. 20% will be under 30 and 27% over 50, and 60% will have a CAP, BEP or equivalent qualification. Among care assistants, 60% work on Saturdays, 56% on Sundays and 15% at night. Among full-time employees, 39% say they earn less than 1,500 euros net per month, and 0% say they earn more than 3,000 euros. The median net full-time salary was 1,549 euros per month in 2017-2019. At the national level, the tension and recruitment difficulties in 2021 are very high among care assistants.

In 2017-2019, the “Nurses, midwives” job family will include 644,000 people, 85% of whom will be women, 20% of whom will be under 30 and 25% over 50, and 60% of whom will have a 2-year higher education qualification. Nurses and midwives account for 2.4% of national employment and 11.9% of employment in Mayotte, the region with the highest proportion. 16% of them work in the Île-de-France region, where they are most numerous. In this profession, 63% work on Saturdays, 57% on Sundays and 22% at night. Among full-time employees, 6% say they earn less than 1,500 euros net per month, and 7% say they earn more than 3,000 euros. The median net full-time salary was 2,028 euros per month in 2017-2019. At national level, the tension and recruitment difficulties in 2021 are very high among nurses and midwives.

In 2017-2019, the “Home helpers and domestic assistants” occupation family included 558,000 people, 95% of whom were women, 11% under the age of 30, 48% over the age of 50 and 41% with a CAP, BEP or equivalent qualification. Home helps and housekeepers account for 2.1% of national employment and 3.9% of employment in Martinique, the region with the highest proportion. 12% of them work in Île-de-France, the region where they are most numerous. In this profession, 46% work on Saturdays, 35% on Sundays and 6% at night. Among full-time employees, 78% say they earn less than 1,500 euros net per month, and 2% say they earn more than 3,000 euros. The median net full-time salary was 1,290 euros per month in 2017-2019. At national level, the tension and recruitment difficulties in 2021 are very high among home helps and household helps.

In the home help, support, care and services sector, the proportion of female employees is estimated at 95%, according to amendment no. 59 of 2023.

The presence of women has been taken into account in the lexicon used to describe the professions of nurse and care assistant, which is not the case for the professions of life auxiliary or home help, as the term is neutral. The texts applicable to these two professions use inclusive writing. The use of the terms “aides-soignantes” and “infirmières” in the feminine perhaps reflects the strong feminization of the care sector. It’s difficult to say what is meant by “auxiliaires de vie” or “aides à domicile”, as the term is gender-neutral.

Thus the public health code (art. 4311-1) uses the masculine and feminine to qualify the profession of nurse and the directory of health and autonomy professions uses inclusive writing and displays professions such as “caregiver and nurse”.

However, this attention to the significant presence of women in this sector of activity is not reflected in the name of the diplomas for access to these professions. Thus, there is the State Nursing Diploma (DEI) and the State Nursing Assistant Diploma (DEAS).

The use of the terms “caregivers” and “nurses” in the feminine form perhaps reflects the strong feminization of the care sector. It is difficult to say what is meant by “care assistants” or “home helpers”, because the term is neutral.

French law is characterized by the neutrality of legislation relating to the care professions, with legal requirements applying regardless of gender at all stages of the care worker’s career, from conditions of access (1.5.1) and the recruitment procedure (1.5.2) to progression in the profession (1.5.3).

Pursuant to article L. 2141-1 of the French Labor Code, the organizations bound by a branch agreement or, failing that, by professional agreements, meet at least once every five years to negotiate “on the need to revise classifications, taking into account the objective of professional equality between women and men and job diversity”.

The NCC for the home help, support, care and services of 21 May 2010 includes a section on classification and pay systems.

Here is an example of a classification grid relating to the conditions for promotion to the upper echelons for employees in the response sector:

Article 13.1 Conditions for advancement through the ranks.

In the category of support staff, the conditions for advancement to level 1 are as follows:

In the category of support staff, the conditions for advancement to level 2 are as follows:

Article 13.2 Basic full-time salary for level 1 and 2 employees in the intervention sector, by step:

The NCC for individual employers and home-based employment of 15 March 2021 provides for a job classification grid for employees, drawn up taking into account the diversity of activities carried out in the home of the private individual employer and the desire of the social partners to develop and enhance employees’ skills. It forms the basis of the minimum wage scale applicable to the employee. This job classification grid enables individual employers and employees to determine the benchmark job performed and the corresponding minimum wage level.

The NCC for private hospitals of 18 April 2002 introduced a new classification system to replace the old classifications in previous collective agreements.

The NCC for personal services companies of 20 September 2012 also provides for a classification system for salaried staff drawn up taking into account the diversity of the activities or professions concerned, but also their common characteristics linked mainly to the place of performance chosen by the beneficiary of the service and the particular suggestions that arise from it.

The NCC for private not-for-profit hospital, care, cure and nursing establishments of 31 October 1951 do not contain a classification system, but address them in subsequent riders.

There is no gender bias in the classification systems of the NCCs studied. However, classifications are a means of reducing pay inequalities between women and men and promoting job diversity.

To our knowledge, there has never been a job classification dispute in the care sector of sufficient importance to warrant media coverage.

To examine to this question we analyse vocational training and job classification (1.8.2), promotion and criteria development (1.8.3), on the means put in place by the partners to combat discrimination and promote gender equality (1.8.4) and finally on harassment (1.8.5).

French legislation does not contain specific provisions on employment contracts in the care sector. Only branch and/or company collective agreements may have to do so. Thus, almost all the national collective agreements studied111 emphasize the “special context” of the home (of the employer/user) as the place where the worker is employed, the duty of accountability and the requirement of loyalty on the part of staff, in particular to prevent the abuse of the weakness of people receiving care. Confidentiality and professional secrecy clauses can be found in most collective agreements applicable to care workers.112 The regulations are geared more towards protecting users than healthcare workers.113 In addition, all national collective agreements for public or private hospitals, whether commercial or not-for-profit, emphasize “the needs of the service” or “the requirements of the service” in order to provide for additional constraints or particular hardships (organization of working hours, timetables and distribution, duty roster with notice period) for employees, sometimes in return for compensation in the form of time off in lieu or allowances (as in the case of weekly days off or additional days of holiday).114 Failure to comply with these special clauses may result in penalties that are often particularly severe.115 In the public sector, entire chapters (Chapter II, Book Ier, Title II) are devoted to the issue of preventing conflicts of interest and criminal offences (art. L. 122-1 to L. 122-25) as well as to the issue of employee liability (Chapter V of the same title: art. L. 125-1 to L. 125-2). However, these specific contractual clauses are in no way directly or indirectly associated with sex.

Working conditions in the care sector can be a subject of concern and debate, and conflicts can arise. However, as far as we know, there is very little case law in the area of sex discrimination and a study of the French press does not reveal any disputes in this area. progression.

This silence and lack of recourse to rights is consistent with the results of the survey conducted by the he Human Rights Defender (Défenseur des droits) on the perception of discrimination in the personal services sector.125 The consequences of discrimination on any grounds (gender or origin) affect these people’s professional lives and their health. 22% have decided to resign or negotiate a contractual termination for this reason (compared with 16% of the working population), 17% have been made redundant or had their contract not renewed (compared with 7%). From a health point of view, anger, fear, sadness and shame sometimes affect these people long after the event: almost 70% of people who have experienced discrimination feel that they went through a period when their mental health deteriorated (sadness, fatigue, depression, fear, feelings of isolation). It is therefore understandable that, compared with the working population as a whole, few care workers seek redress: 17% have gone to the occupational health service or GP, 12% have spoken to the trade union, 87% have alerted the Labour Inspectorate (compared with 13%), or have taken their case to court (3% compared with 9%).126

The principle of equal pay for men and women for equal work or work of equal value127 has long been established in French law, dating back to a law passed in 1972. Although the pay gap has narrowed steadily over the last 25 years (from 22.1% in 1995 to 15.5% in 2021 for comparable working hours and jobs), significant differences remain due to the fact that women are more likely to work part-time, and to the gendered distribution of occupations and lower-paying jobs.128

The NCC for private hospitals of 2002 stipulates that companies shall ensure, for the same work or for work of equal value, equal pay for men and women, in accordance with the provisions of article L. 3221-2 of the Labor Code. When examining economic trends and the employment situation in the sector, in application of article L. 2242-3 of the Labor Code, any situations revealed to be in contradiction with this principle will require appropriate measures to be defined in order to put an end to them.129 More generally, the130 collective agreement incorporates the provisions of the French Labor Code on the principle of professional equality131 and on collective bargaining at company level. These elements are taken up in the agreement of 12 June 2018 on the quality of life at work and professional equality, which requires companies to guarantee the absence of illegitimate disparities in pay, i.e. not based on clear and objective factors (qualifications, professional experience, position, level of responsibility, tasks entrusted, results) between women and men placed in equivalent situations. Where necessary, companies must take steps to remedy any inequalities observed.

In the 2021 NCC for individual employers and home based employment, the social partners stress their commitment to the principle of equal pay for men and women for the same work or work of equal value, as defined by the legal provisions.132

The signatories of the NCC for the home help, support, care and services of 2010 understand remuneration to mean the ordinary basic or minimum wage or salary and all benefits and accessories, in connection with the job held, and stipulate that the various elements making up remuneration are established according to the same standards for women and men. The NCC introduces clauses on the treatment of parental leave, with a view to avoiding unequal effects on professional or family life. Thus

Rider 59 of the 2010 NCC for the home help, support, care and services also addresses equal pay in organizations with fewer than 50 employees. The partners invite them to draw up gender-disaggregated and anonymized pay reports based on the indicators listed in the agreement (basic annual salary, age, seniority in the job in the branch, classification under the agreement, branch, category (employee, TAM, executive), level and step, level of diploma, seniority in the job within the organization; working hours (full-time/part-time), absences due to family leave (maternity leave, parental leave, paternity leave, etc.), with the exception of parental leave, with the exception of leave for sick children.

There are very few high-profile cases of gender discrimination in the care sector. Whether in the nursing profession, the care assistant profession or the home help profession, the subjects that are repeatedly covered in most newspapers and media concern the training of care workers,134 remuneration,135 difficult working conditions,136 leading employers in both the private and public sectors to seek to retain care workers137 and to question the conditions of their retirement.138

In 2019-2020, the covid-19 epidemic caused an electroshock by highlighting the invisibilisation and lack of recognition of the care professions, which led carers to speak out more loudly.139 This will lead to an increase in the salaries of care workers as part of the Ségur health package, the cost of which is estimated at 26,827 million euros in the private non-profit and for-profit sector and 16,500 million euros for public employers.140 Nevertheless, this will not give rise to the fact that society has become partly aware of the paradox that exists between the essential and vital social usefulness of front-line jobs,141 which include “care professions, the majority of which are occupied by women, and their particularly low levels of consideration and professional and salary recognition”.142

The result is a lack of attractiveness in the care professions, leading to staff shortages and work overload. Caregivers see this as a lack of recognition or even abandonment of the elderly, particularly in the for-profit sector, against a backdrop of a trend towards privatization143 of care in EHPADs.144

Neither legislation nor collective agreements refer to reconciling work and family life “for women workers” in the care sector in general or for each job in the care sector. Nor are there any court rulings on the subject. Collective agreements provide for work-life balance arrangements for night workers of both sexes (1.12.1). One agreement addresses the issue of reconciling work and family life in a global (societal) way, i.e. by placing work in a given territory with its constraints in terms of trade, transport, etc. (1.12.2).

After contacting CARSAT, we did not have confirmation of the existence or not of statistics or databases on work accidents or occupational illnesses resulting from the work of personnel in the care sector.

Women’s employment rates have risen sharply since 1975, making France one of the European countries with the highest rates in the 25-55 age group. However, this increase has been gradual over the generations and has not affected all women in the same way.145

At ages between 30 and 50, the activity rate for women has risen sharply over the generations. By the age of 40, it had risen from 69% for the generation born in 1945 to 86% for the generation born in 1975, an increase of 17 percentage points. However, this increase was not fully reflected in a rise in the full-time equivalent employment rate, due both to the rise in the unemployment rate and to the growth in part-time employment. At the same age and for the same generations, the employment rate rose by only 15 percentage points and the full-time equivalent employment rate by 13 percentage points. The increase in women’s participation in the labor market has therefore partly taken the form of part-time employment.

These general trends conceal major disparities according to level of qualification. For women with the lowest levels of education, the increase in participation rates has mainly taken the form of part-time jobs, since full-time equivalent employment rates have risen very little. For the most highly educated, on the other hand, the rise in activity rates was almost entirely reflected in full-time jobs: their activity rate rose by 13 percentage points and the full-time equivalent employment rate by 15 percentage points (at age 40 between the 1945 and 1975 generations). Their full-time equivalent employment rate has also risen faster than their employment rate (15 points compared with 13 points), reflecting less recourse to part-time jobs.

Women’s growing participation in the labor market has also been strongly determined by the number of dependent minor children in the household. The increase in activity and employment was small for women without dependent children, as activity rates were already high. It was moderate for women with just one dependent child, and marked for women with two or more dependent children. Nevertheless, the presence of many children continues to be a major determinant of employment. At the age of 40, for the generation born in 1975, the full-time equivalent employment rate is 70% for all women, but only 58% for women with three or more dependent children.

However, the latest available data shows that this increase in female employment is running out of steam. For women born after 1970, activity and employment rates are no longer increasing over the generations.

The gaps in activity and employment between women and men have therefore continued to narrow over the generations. However, the catching-up process, which was very rapid for the generations born between 1925 and 1970, is slowing considerably for the later generations. Whereas for the generations born before 1970 this was mainly due to an increase in the indicators for women, it is now entirely due to a reduction in the indicators for men.

Strong growth in activity and employment for men and women around age 60.

At ages close to 60, the activity and employment rates for men fell sharply for the generations born between 1925 and 1940. This decline was the result of regulatory changes in the pension system and the labor market: development of early retirement and gradual cessation of activity schemes, exemption from job-seeking for the oldest unemployed, introduction of the age of 60 for entitlement to retirement, etc. For women, the effect of these changes was counterbalanced by increasing participation in the labor market, with the result that activity rates stagnated at the same ages and for the same generations. For the generations born after 1940, the trend was completely reversed. These generations have been affected by the gradual phasing out of early retirement schemes: job-seeking exemption was abolished in 2012 and early retirement schemes disappeared in 2005. These generations have also been affected by the various reforms of the pension system: extension of the insurance period required for payment of a full-rate pension (1993 and 2003 reforms), raising of the two age limits of the pension system (2010 reform), with the legal age of entitlement rising from 60 to 62 and the age of cancellation of the discount from 65 to 67. The participation rate at age 59 has thus increased by 33 percentage points between women born in 1925 and those born in 1955. For men of the same generation, the increase was 14 percentage points. Employment rates rose similarly, which shows that these reforms did indeed result in people staying in work for longer.

The increase in women’s participation in the labor market is a contemporary development that is already well known and documented. So what do the most recent data tell us? Firstly, the increase is slowing down at the prime working ages (30-55). Secondly, for men, the trend already observed of a slow decline in participation in the labor market is continuing, so that today it is this decline that explains why activity and employment for men and women continue to converge. Lastly, these data show a strong increase in both labor force participation and employment at ages close to retirement. This observation, which applies to both men and women, can be explained both by the gradual phasing out of retirement schemes and by reforms to the pension system.

Statistical data: Summary of: ILO-WHO, Gender pay gaps in the health and care sector. An analysis of the situation in the world in the era of COVID-19, Study Report 2022.

The situation of women in the care and personal services sector is well known and studied by international institutions such as the ILO. According to the 2022 report, the sector is highly feminized worldwide—women account for around 67% of workers worldwide—and there is a significant degree of occupational segregation between women and men. Despite the high degree of feminization,146 there are gender inequalities in the health and care sector, particularly in terms of pay.147 According to this report, the first of its kind to provide a global analysis of the gender pay gap across the sector,

According to the same report, “the gender pay gap in the health and care sector is largely unexplained by the factors determining wages in the labor market”. Drawing on data from 54 countries, which account for around 40% of the world’s employees, the report breaks down the gender pay gap in the health and care sector into two parts: that which can be explained by differences in the work attributes of women and men, and that which remains unexplained by these differences. The first part, which includes age, level of education, working time arrangements and institutional sectors, can explain a small part of the gender pay gap observed in the sector. However, most of the pay gap between women and men remains unexplained by the data available on professional attributes”.

This report is therefore in line with various global pacts and strategies, including the Global Strategy on Human Resources for Health to 2030 (WHO, 2016), The UN 2030 Agenda for Sustainable Development. The Five-Year Action Plan for Health Employment and Inclusive Economic Growth (2017-2021) (WHO, 2018), The ILO Global Commission on the Future of Work’s2019 Working for a Better Future report and the ILO Centenary Declaration for the Future of Work 2019 It further addresses one of the key areas related to gender equity in the global health workforce (WHO, 2019).150

In a large number of countries, the pay gap between women and men in the health and care sector is greater than in other sectors of the economy. This report shows that the difference between the gender pay gap in the health and care sector and that in other sectors is marginal. For example, in France the average hourly pay gap in the health and care sector is 14.1%, while in the rest of the economy it is estimated at 13.6%.151

COVID-19 has had an impact on employment and remuneration in the health and care sector:

The world is facing a general shortage of healthcare and personal assistance workers.152

Conclusions/recommendations of the ILO-WHO report:

Do the legislation or, where applicable, the collective agreements, for each of these professions in the care sector, include specific provisions for women in the area of health and safety at work? If so, please provide details.

The provisions of specific collective agreements on health and safety concern pregnant employees and are aimed either at reducing working hours (1.15.1) or switching from a night shift to a day shift without loss of pay (1.15.2) or parental leave (1.15.3).

Most often, disputes concerning carers relate to issues of discriminatory dismissal based on the health status of the care professional,156 equal treatment of disabled workers,157 equal pay resulting from changes to tasks,158 undeclared work,159 or refusal to allow practitioners with foreign qualifications to practize.160

In France, there are no specific provisions on contract termination that differentiate between men and women in each profession. The only specific provisions concern the protection of pregnant women against dismissal under ordinary law. Article L.1225-4 of the French Labor Code establishes the principle that it is forbidden to terminate the employment contract of an employee who is medically certified to be pregnant during all the periods of suspension to which she is entitled in respect of maternity leave, whether or not she makes use of them, and in respect of paid leave taken immediately after maternity leave, as well as during the 10 weeks following the expiry of these periods. Under the French Labor Code, failure to comply with these provisions renders the dismissal null and void, giving the employee the option of requesting reinstatement or payment of damages.

There has been no court ruling on this matter.

There are no specific social protection provisions that distinguish between men and women.

To the best of our knowledge, there is no case law concerning the granting of benefits to staff working in the care sector that has given rise to direct or indirect discrimination on the grounds of sex.

The Haut Conseil à l’Égalité entre les femmes et les hommes (High Council for Equality between Women and Men), the main institution for promoting gender equality, has not carried out any specific work relating to the rights of women care workers. On the other hand, the Conseil Économique Social et Environnemental (CESE), the Republic’s third constitutional assembly, which participates in drawing up and assessing public policies, has carried out a number of studies and issued opinions on “The development of personal services” in 2007, and “Working at home with vulnerable people: linking professions” in 2020. In the field of research, the Institut de Recherches Économiques et Sociales (IRES), in association with the CGT trade union, carried out a study and published a report in January 2023 entitled “Investing in the care and support sector. Un enjeu d’égalité entre les hommes et les femmes”.

In 2022, the Defender of Human Rights carried out a survey on “The perception of discrimination in employment in the personal services sector”.161 The health crisis of 2020 prompted this sectoral survey, as the pandemic highlighted the work of care professionals, so-called “front-line or essential” workers: home help employees. Working in or near people’s homes, these professionals are subject to difficult working conditions, under-valuing of their jobs, unequal treatment and discriminatory harassment in the exercise of their professions. These conditions are poorly documented by institutions, as noted by the Defender of Human Rights, and by research.

Nearly a third of female personal services workers feel that they have witnessed discrimination or discriminatory harassment at work at least once, slightly less than the working population (41%). They say they observe such discrimination in their day-to-day work (61% compared with 53% of the working population). The types of discrimination cited were: different working hours or time slots (33%), patients considered more difficult (22%) or the number of hours worked per week (22%).162

As in the general working population, almost a quarter of employees in the personal services sector (23%) say they have already experienced discrimination or discriminatory harassment in the course of their job search or career. Nearly a third say they have experienced this on several occasions.163

The forms of discrimination considered to be most widespread are those linked to gender identity (52%), sexual orientation (50%), being a woman (35%) and economic insecurity (33%). This discrimination most often manifests itself when looking for a job. Family situation is also a major factor in exposure: people who are not in a couple report more discrimination than those in a couple and living in the same accommodation (28% versus 20%). Among employees with one or two children, those who are separated and mainly or exclusively responsible for looking after them report almost twice as much discrimination as those who have alternating custody or do not mainly look after them.164 Nearly one in two employees born abroad have experienced discrimination or harassment, compared with one in five of those born in France.165

As in other sectors, personal services reveal a close relationship between working conditions, social insecurity and discrimination, which points to systemic discrimination, particularly in the female-dominated care professions. Such discrimination is sometimes difficult to identify, and in any case has not, to our knowledge, given rise to any court decision.166 However, when it comes to access to employment, discrimination is widespread (33% when recruiting), particularly when it comes from private employers who are not trained in recruitment methods and ask questions that may infringe the law. However, it is more in their day-to-day work that employees claim to be victims of discrimination (28%): 31% say that this discrimination relates to the choice of working hours, 22% to the number of hours allocated, 20% to having more “difficult” patients, 14% to being forced to do undeclared work or to work in remote locations.167

These activities, which are not recognized as qualified, are often “in contact with dirt or filth” and in the service of people, are a breeding ground for sexist injunctions, sexual harassment and/or outright sexual assaults. 40% of employees have been confronted with stigmatizing remarks, and 25% with illegal requests during an interview for a job or promotion. The Ombudsman’s survey found that employers had unlawful expectations, mainly in the form of incentives or pressure to change a candidate’s appearance (hairstyle, make-up, etc.), to give up or postpone a planned pregnancy, or to gain or lose weight.

The aforementioned 2022 survey by the French Human Rights Ombudsman highlights the extent of sexist behavior, harassment and sexual assault, “an alarming finding” in the words of the Human Rights Ombudsman. The home as a workplace increases the risk of reproduction of social, racial and patriarchal domination, a legacy of the domesticity of the 19th century, of the imaginary image of the little maid, of prejudices about the sexual availability of the employee: 1/3 of female workers have been subjected to embarrassing remarks about their dress or appearance, 20% have received sexual remarks, writings or images in the course of their work and 8% have been pressured in their job to perform a sexual act. It was found that women working in personal assistance were overexposed to sexist and sexual violence compared to the working population as a whole: 1/5 of them had been subjected to light physical contact (compared to 18% of the working population as a whole), 1/6 had had their breasts, buttocks, sex or upper thighs touched at work (compared to 12%) and 8% had been forcibly kissed on the mouth.168

The perpetrators of discrimination are varied: company management (40%), line managers (37%), work colleagues (28%) or users/patients (18%).169

In addition, the guide produced by the Defender of Human Rights (Défenseur des droits) and the Conseil supérieur à l’égalité professionnelle (High Council for Professional Equality) highlighted the under-valuing of jobs involving a high proportion of women. However,

More generally, the value of care professions is highlighted in studies by a number of bodies and institutions promoting professional equality and combating discrimination. The same findings are confirmed by the very recent Clersé-CGT report.171 The second part of this report is based on a “Mon travail le vaut bien” (“My job is worth it”) consultation172 carried out among fifteen care and support professions, giving professionals the opportunity to talk about their perceptions and experiences at work.

In any case, the carers interviewed (nurses, care assistants) are generally “proud”173 of their profession, but would like to see the adoption of a number of measures that they consider to be effective in promoting gender equality at work. By way of illustration, these include encouraging companies / administrations / local authorities / hospital establishments to evaluate their actions in favor of professional equality on an annual basis.

When it comes to promoting gender equality and combating discrimination, French law was first influenced by international human rights law. But the most decisive influence has been that of European Union law. The sources of non-discrimination law are thus numerous.

The legal list208 of criteria that may not be used to justify a decision under penalty of criminal sanctions209 or nullity of the decision in question includes race, ethnic origin and religion.

Some of the grounds for discrimination are protected at the highest level by the 1958 Constitution (race, origin, religion and sex) and by the Preamble to the 1946 Constitution (trade union action or membership in paragraph 6, and even health in paragraph 11). These criteria are also found in European and international conventions and in French legislation, along with many other grounds.

According to article 1st of the 1789 Declaration of the Rights of Man and of the Citizen, “Men are born and remain free and equal in rights”. This article sets out a precondition for State intervention, a postulate rather than an objective to be achieved.210 This position is confirmed by the wording of Article 1 of the Constitution of 4 October 1958, which states that it is the State that “ensures the equality of all citizens before the law, regardless of their origin, race or religion”.

Article 1st of the 1958 Constitution, as amended by the constitutional revision of 4 August 1995211 states: “France is an indivisible, secular, democratic and social Republic. It ensures the equality of all citizens before the law without distinction of origin, race or religion. It respects all beliefs”. This article is a transposition of the vision of equality introduced by article 6 of the 1789 Declaration of the Rights of Man and of the Citizen, under which the law

For Professor Guy Carcassonne, it follows from these texts that nothing that constitutes the identity of individuals can be considered as “virtues” or “talents” and form the basis for a difference in treatment.212

While French law sets out an exhaustive list of prohibited grounds for discrimination, Convention no. 111 of the International Labour Organization (ILO), ratified by France, adds to the first list of grounds set out in Article 1 a), which includes “race, color, sex, religion, political opinion, national extraction or social origin”, “any other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment”, “sex, religion, political opinion, national extraction or social origin”, “any other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, which may be specified”.213 International labor law, like international human rights law, is thus characterized by simply enumerative lists of grounds.

Race or origin are systematically among the first prohibited criteria cited in the list drawn up under French law. Other criteria also appearing in the list may be associated with it: “ethnic origin”, “color” or “membership of a national minority” and, more indirectly, “place of residence”, “surname”, “language” and, more recently, “bank account”. Several of these variations relating to origin can be found in all the texts.

The principle of non-discrimination does not protect certain groups of people, but each individual against arbitrary decisions based on a ground considered by the law to be a priori prejudicial to the principle of equality and unjustified. In this respect, the principle of non-discrimination cannot be considered as a categorical rule, because the grounds are not categories and cannot be used to establish any categorical advantage; on the contrary, they have been designed to eliminate a disadvantage. Belonging to a category is the reason, not the other way round. Any individual identified by the ground may rely on the principle of non-discrimination in the event of differential treatment based on that ground.

The criterion of religious discrimination has been the subject of much debate and clarification in recent years.214 Article L. 1132-1 of the French Labor Code prohibits all discrimination based on employees’ religious beliefs. The modern French State, founded on the separation of Church and State and on the cardinal principle of secularism, does not recognize any religion: it is not, in principle, up to the legislator, the judges215 and even less to employers to determine what does or does not fall within the scope of religion and, more broadly, of beliefs or convictions that may be the subject of individual protection.216

French law regularly adds to the legal list of prohibited grounds for discrimination. Among the grounds that may have an impact on or be associated with a person’s origin is that of place of residence, which was added in 2014.217 It was introduced into the law to take account of the situation of people living in the “suburbs”, most of whom have an immigrant background. However, while the first victims are those who do not have the “right” facial features, the people who live alongside them in certain large-city suburbs may also be excluded from employment by virtue of living in these areas. In this sense, place of residence is a criterion that makes it possible to capture a social exclusion that is universal in nature, even if it is particularly significant for people of foreign origin.

Article 7 of the EC Treaty (now, after amendment, Article 12 EC) generally prohibits any discrimination on grounds of nationality; Article 48 of the EC Treaty (now, after amendment, Article 39 EC) applies the fundamental principle of non-discrimination and provides in paragraph 2 that the free movement of workers within the Community implies the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration218 and other conditions of work. Article 7 of Regulation No 1612-68 of 15 October 1968 on freedom of movement for workers within the Community provides that any clause in a collective or individual agreement or other collective regulation which lays down or authorizes discriminatory conditions in respect of workers who are nationals of other Member States, in particular as regards pay, shall be null and void. These texts, which are directly applicable in the legal order of any Member State, confer on the persons concerned individual rights which the national courts must safeguard and which take precedence over any national rules which conflict with them. The Charter of Fundamental Rights of the European Union prohibits “any discrimination based on any ground such as race, color, ethnic or social origin, genetic features, language, religion or belief…”.219 Paragraph 2 of Article 21 of the same Charter stipulates that “within the scope of application of the Treaties and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited” between Community citizens. Although French law does not include nationality as a prohibited criterion for discrimination, EU law applies to nationals of the Member States.

Prohibition of discrimination and equal access to employment. Generally speaking, the prohibition of discrimination is one of several constitutional provisions. The first concerns the right to obtain a job, as set out in paragraph 5 of the Preamble to the 1946 Constitution, which is accompanied by the right for everyone not to “suffer prejudice in their work or employment on account of their origins, opinions or beliefs”. But in order not to be discriminated against in one’s job, it is still necessary to have had access to it. The second provision on this point is Article 6 of the DHR, cited above. Admittedly, this provision refers explicitly to public posts, which are the responsibility of the State, but the new paragraph of Article 1st of the Constitution argues for a broader understanding of this provision. It should be remembered, however, that nationality is not a criterion for discrimination under French law, which means that certain jobs are closed to nationals of non-EU countries.220

Prohibition of discrimination and equal conditions of employment. Despite legislation and public policies, inequalities in access to employment are still very significant and the reduction of certain inequalities, such as those between men and women, is stagnating in most OECD countries.221 Several studies, including the benchmark TeO “Trajectoires et Origines” survey carried out by INED in 2008,222 have demonstrated the persistence of inequalities in access to the labor market linked to origin. In 2016, a survey—on a smaller scale—carried out by France Stratégie confirmed that

In 2020, the work of the French Human Rights Ombudsman224 showed that, in France, real or supposed origin was the second most common criterion for discrimination after gender: 11% of individuals stated that they had experienced one or more instances of discrimination because of their origin or the color of their skin over the last five years.

Provisions on non-discrimination and the employment rights of foreign nationals. In application of the principle of non-discrimination, labor regulations apply in their entirety to foreign workers in terms of access to employment, performance of the employment contract and termination of the contract. Article 1132-1 of the Labor Code explains this in the following terms: “No person may be excluded from a recruitment procedure or from access to an internship or period of in-company training, and no employee may be penalized, dismissed or subjected to any direct or indirect discriminatory measure, in particular with regard to remuneration, profit-sharing measures or the distribution of shares, training, redeployment, assignment, qualification, classification, professional promotion, transfer or renewal of contract on the grounds of […] his or her origin) origin,225 ability to express oneself in a language other than French, actual or supposed membership or non-membership of an ethnic group, nation or so-called race, religious beliefs, place of residence or bank account […]. Discrimination on any of these grounds is punishable under criminal law (articles 225-1 to 225-4 of the Criminal Code).226 Any person who believes that he or she has been the victim of direct or indirect discrimination in these areas may bring the matter before a court based on facts from which it may be presumed that such discrimination exists. In the light of these facts, it is up to the defendant to prove that the measure in question is justified by objective factors unrelated to any discrimination. There is relatively little case law to provide an overview here. In a decision of 17 December 2019, the Conseil des prud’hommes de Paris recognized the existence of systemic racial discrimination in a company operating in the building and public works sector: it was found that a pyramid system of occupational assignment on the basis of origin had been put in place on a Paris construction site: claimants employed as laborers were assigned to the most arduous manual tasks, while supervisory staff of North African origin were responsible for monitoring the proper performance of the work on behalf of the employer.227 In a decision of 18 January 2012, the Cour de cassation ruled that it was racial discrimination for the deputy manager to inform the employee that she could not hire her immediately because the management had told her that it “did not trust North African women”, so that she could not be recruited until a fortnight later when the manager was away on holiday.228 In another decision on 10 November 2009, the French Supreme Court ruled against a company for racial discrimination when it asked an employee to change his first name from Mohammed to Laurent.229

The following comments and information are taken from INSEE surveys published in 2023.

The immigrant population in France will be larger in number and as a percentage of the total population in 2022 (10.3%) than in 1946 (5.0%), 1975 (7.4%), 2010 (8.5%) or 2018 (9.3%).269 Between the mid-1940s and the mid-1970s, immigration flows were predominantly male, filling the labor needs arising from post-war reconstruction and the post-war boom. In 1974, with the economic situation in a downturn, labor immigration was curbed and family immigration developed. Since then, the proportion of women in immigration flows has tended to increase, whether through family reunification or not. In 2022, 51% of immigrants were women, compared with 44% in 1975 and 45% in 1946. However, although women are still in the majority among new immigrants, their share has been falling in recent years (by 3 points in 2021 compared with the period 2006-2014).

In 2014, according to the employment survey, one in ten people aged between 15 and 64 living in mainland France was an immigrant. Half of working foreigners arrived in France before 1998. The working immigrants who have been in France the longest are from southern Europe (Spain, Italy, Portugal): 75% arrived before 1998. Immigrants from the Maghreb are equally likely to have arrived before and after 1998. By contrast, immigrants from other African countries arrived more recently: 60% after 1998. Immigration has become more feminized; women account for 58% of working-age immigrants who have arrived since 2007: in 2014, they are even more numerous, with 62% arriving before the age of 15, mainly for family reasons, compared with 28% of men who emigrate for work. Since 1998, the proportion of women declaring that they came to study has almost equaled that of men. The most common reasons for arriving in France are family reunification (61%), work (18%), study (11%) and international protection (5%). The level of education of immigrants has risen over the last thirty years: 33% of those who arrived after 1998 have a higher education qualification, compared with 21% of those who arrived before that date. At the time of their first job in France, 85% of immigrants who arrived at the age of 15 or over were employees (58%) or manual workers (27%). Only 7% were managers and 5% in intermediate occupations. 36% of immigrants felt they were overqualified for their first job in France in relation to their level of education, experience and skills. This feeling persisted over time, with 33% still considering themselves overqualified in their current job. This is the case for only 17% of non-immigrants.

In 2017, 35 of the 87 occupations (or professional families) had as many immigrants as in total employment, or even more. Most of these “immigrant” occupations are in the service sector (64%), but there are also occupations in construction (19%) and industry (17%).

Domestic help is the occupation that makes the most use of immigrant labour: 39% of jobs in this occupation are held by immigrants, almost four times the proportion of immigrants in total employment in France. The podium is completed by security guards and unskilled construction workers, who employ 28% and 27% of immigrants respectively.

According to a 2019 survey on the care sector, 86% of nurses are women and 2.1% are immigrants; 88% of care assistants are women and 9.6% are immigrants; 94% of home helps are women and 19% are immigrants.

Unlike the American, Canadian, Brazilian, Irish and British censuses, and in accordance with the legal framework in force in France, the French census does not include any self-declaration of membership of an “ethno-racial” group.270 The issue of ethnic statistics in France is highly controversial. For some, ethnic statistics run the risk of undermining republican universalism, locking people into identity categories and essentializing them, constantly referring them back to their origins, or even racializing them. Instead of “helping to combat discrimination in this way, we would be reinforcing community allegiances”.271 For others, it is a knowledge tool that is essential for measuring the extent of discrimination and social issues; “racial discrimination is not soluble in social inequality, it adds to it”.272

The above-mentioned ethnic statistics are strictly regulated in France. Law no. 78-17 of 6 January 1978 on data processing, data files and individual liberties begins by stating, in Article 6, that the collection and processing of so-called “sensitive” data is prohibited in France, in particular data relating to the actual or supposed racial or ethnic origin of individuals:

In the same article, however, the law specifies that there are exceptions to this prohibition. These are set out in the conditions provided for in II of Article 9 of the RGPD (EU) 2016/679 regulation of 27 April 2016. This authorizes processing “for scientific or historical research purposes, or for statistical purposes” (in accordance with Article 89(1)). INSEE’s work on sensitive data falls fully within the scope of this law and the 1951 Statistics Act. The Institute is not obliged to obtain the consent of individuals or to invoke the public interest, unlike other derogations which must be justified by the public interest (cf. the procedures set out in II of article 31 and article 32 of the law relating to data processing, files and freedoms). Furthermore, an important decision by the Constitutional Council in 2007 specifies what information relating to origins may be collected. Without going back over the entire history of the debate, it should be remembered that the subject of ethnic statistics gave rise to heated exchanges at the time of the discussion of the law of 20 November 2007 on immigration control, integration and asylum. At the time, the government wanted to add a new derogation for “studies measuring the diversity of origins” to the list of existing derogations allowing the collection of “sensitive” data, thereby amending the 1978 Act. This provision was rejected by the Council on the grounds that it was a “cavalier législatif” (i.e. an article of law unrelated to the more general purpose of the text of the law—see the Constitutional Council’s decision of 15 November 2007). Nevertheless, the Constitutional Council subsequently felt the need to clarify its opinion on this issue, and in fact went back to the drawing board twice to explain its position, as the constitutional notebooks accompanying this decision show.

It is under this legal framework that public statistics surveys are authorized, including questions on the country of birth and nationality (at birth and at the time of the survey) of respondents, but also of people living in the same household and of the respondents’ relatives. These questions are asked in particular in the Employment survey, which is the most important in terms of the number of people surveyed—over 100,000 every quarter. Information on parents was introduced for the first time in 1999 in the census-based Family survey. It has been included in the Training and Professional Qualifications survey since 2003, in the Employment survey, which has been carried out continuously since 2005, in the Housing surveys since 2006 and in other official statistics surveys, such as the Générations surveys carried out by Cereq since 2001. These surveys provide information on the descendants of immigrants (people born in France who have at least one immigrant parent). This is a major development in official statistics in the field of ethnic statistics, which are based on objective data without perception bias. Thanks to this, we now know how many descendants of immigrants there are in France compared with other European countries, France being an old country of immigration274 This information also makes it possible to study inequalities or “statistical discrimination” on the labor market of immigrants and their descendants according to their different origins (cf. for example, a study on differences in employment rates from 2010 or a more recent one from 2019 on inequalities in employment and pay, or another study on integration after leaving the education system based on the Cereq Générations surveys). In addition to all these sources, there is of course a major survey by INED and INSEE on the diversity of populations in France, the Trajectoires et Origines (TeO) survey. As part of a set of questions on the various dimensions of origins and belonging, it also includes questions on feelings of belonging. These include: the link with the country of origin, the country of birth and the nationality of the parents at birth, religion, languages, self-image and the way others see them. This survey is authorized by the Constitutional Council and was recognized as being in the public interest by the CNIL in 2008. However, we have few or no statistics on migrants in the care sector. Those that do exist relate to doctors and nurses; none that we are aware of relate to care assistants and home helps.

From the outset, as some authors have observed, jobs are compartmentalized, male and female employees do not do the same jobs, nor do they receive the same professional recognition, and the same is true for people’s origins. Some employers keep workers from immigrant backgrounds out of the limelight,275 or confine them to arduous jobs,276 or restrict,277 as well as young people,278 access to stable jobs and confine them to temporary employment. Jobs are colored, aged and gendered.279

As a reminder, in the INSEE Enquête Emploi 2019 survey,280 we have the following figures concerning the place of migrants in the care professions selected for our research, i.e. nurses, care assistants and home helpers:

The characteristics of the care worker labor market282 show that this is a sector with a high female employment rate. Overall, according to an ILO survey carried out in 2019, foreign workers in France account for 10% of workers in the health and social work sector, compared with 12% in the workforce as a whole, as indicated above.283

On the other hand, as mentioned above, foreign nationals are over-represented among home helps.284 As a reminder, around 249,000 people work in the home help sector as employees of associations (153,000) or for-profit private companies (96800).285 Of these, 14.5% were foreign-born, compared with 5.5% of the employed population in 2015 and 19% in 2019. These figures are confirmed by an ILO study which estimates that “migrant workers are generally employed in occupations that require the fewest qualifications”.286

The above statistics do not distinguish between different categories of migrants.

We are not aware of any statistics or data on the participation of care workers on the basis of race, technicality, religion or language.

We are not aware of any statistics or data on the participation of care workers on the basis of race, technicality, religion or language.

We are not aware of any such disputes or conflicts.

We have not had access to such statistics, if they exist.

We are not aware of any statistics or databases concerning the participation of migrant workers in the care sector, whether in the formal or informal economy.

Unlike the criterion relating to gender, origin is both more difficult to capture and can only concern a limited number of people. A person’s origin can be very complicated to determine and, furthermore, the collection of this type of data is only authorized under the conditions already described above.287 For example, it has been observed that there are a large number of reports on equality between women and men and that its progress is measured year after year, whereas there are strong reservations about ethnic origin. The lack of data on the ethnic composition of French society means that it is impossible to shed light on the true extent of the discrimination experienced by these people, who therefore have no means of effectively challenging the public authorities.

Foreign nationals can work in the French civil service. However, depending on their nationality, the conditions of access and the status (civil servant or contract employee) to which they are entitled vary.

Under French law,

Foreign nationals from a European country can thus gain access to the French civil service by competitive examination, secondment or contract.

Nationals of EU Member States may take a competition for access to the French civil service under the same general conditions applicable to nationals289 in application of European Community law prohibiting discrimination based on nationality within the Community.

In order to meet the nationality requirement, non-EU nationals must have obtained French nationality no later than the date of the 1re competition test. However, some posts are open to all candidates without any nationality requirement. These include university professors, lecturers and hospital doctors.

In addition to the nationality requirement, diplomas, training or experience in another European country may be accepted as equivalent to the diploma, training or experience required to take the competition. Competitive examinations usually require a certain level of diploma. This level of diploma is specified in the specific regulations and generally applies to all the rules governing recruitment, promotion, pay, etc. for all civil servants who are members of the same body or job category in each body or job category (brevet, Certificat d’aptitude professionnelle, Brevet d’études professionnelles, baccalauréat, master’s degree, etc.).

In the case of a competitive examination or specific recruitment for a regulated profession, i.e. professions whose practice is subject to authorization by a competent authority and the possession of a diploma or specific training (social worker, nurse, care assistant, etc.), you must have the relevant diploma.

The Human rights Defender (Défenseur des droits) has not questioned the principle of requiring foreign nationals to have a diploma in order to enter certain professions. In fact, the High Authority for the Promotion of Equality and the Fight against Discrimination considers that

The Defender of Rights therefore considers it justified to introduce knowledge assessment procedures for professionals holding diplomas issued outside the European Union, in the absence of a bilateral agreement. Moreover, these procedures must allow access to the profession, in particular by taking into account professional experience in France, so as not to have a discriminatory effect.291 In this respect, Decree no. 2007-196 of 13 February 2007 on the equivalence of diplomas required to take part in competitions for access to civil service bodies and employment frameworks goes in this direction, as it provides for procedures for the examination, by commissions, of diplomas issued outside the European Union and of skills acquired.292 If there is a prior examination of diplomas, the date taken into account is that of the 1re meeting of the selection board responsible for choosing the candidates, unless otherwise specified in the special regulations, defined as all the rules applicable in terms of recruitment, promotion, remuneration, etc., to all civil servants who are members of the same body or employment framework to which the candidate belongs.

It should be noted, however, that under French law, basic civil service social workers such as auxiliaires de vie sociale, also known as home helps, are recruited without competition by local authorities or municipal social action centers. They come under the local civil service.

In any event, the so-called sovereignty posts,293 defined as posts in a sovereign sector (justice, home affairs, budget, defense, foreign affairs, etc.) and determined according to the nature of the duties and responsibilities performed, are only accessible to French nationals. As a result, foreign nationals from the European Union

In its opinion issued on 1st December 2008 on jobs closed to foreigners, the Advisory Committee of the Human Rights Defender emphasized that

In accordance with Article 39 of the Treaty establishing the European Community, freedom of movement implies the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work. In addition to freedom of movement for workers, Community law guarantees equal access to employment for nationals and Community nationals. In the public sector, equal access to employment for nationals and nationals of Member States becomes the rule, with the exception of jobs linked to national sovereignty or the exercise of prerogatives of public authority by nationals.

According to the Court of Justice of the European Communities, the exception to the principle of equal access to employment between nationals and Community nationals is to be interpreted strictly, there is no need to distinguish between the public and private sectors, and the focus must be on the nature of the employment.

While Community law allows Member States to reserve for their own nationals jobs related to national sovereignty or the exercise of public authority, Community law does not prevent Member States from recognising the right of non-EU nationals to equal access to employment on their territory. In addition, since the Treaty of Amsterdam, asylum and immigration issues fall within the remit of the European institutions and are no longer solely a matter for cooperation between Member States. Thus, the Council extended the equal treatment in employment enjoyed by Community nationals to their family members who are third-country nationals, by Directive 2004/38 of 29 April 2004 (Articles 23 and 24).

Community law also provides for the right to equal access to employment for long-term non-EU residents. However, Member States retain some room for manoeuvre in this area and may derogate from this principle under the conditions set out in the above-mentioned directive. Directive 2003/109/EC of 25 November 2003 confers this right on third-country nationals who are long-term residents, defined as persons who have resided legally and continuously in the territory of a Member State for five years (article 11).

However, this directive allows Member States to

The French State has incorporated provisions harmonizing long-term resident status into the Code on the Entry and Residence of Foreigners and the Right of Asylum, but has not transposed the principle of equal treatment between nationals and residents who are nationals of third countries in terms of access to employment. The Council notes, however, that despite the expiry of the deadline for transposing these two directives in 2006, the principle of equal access to employment has not been transposed into national law for family members and long-term residents.

Ultimately, in the opinion of the Defender of Rights, there is no reason to call into question the reservation for nationals of jobs, in both the public and private sectors, involving the exercise of national sovereignty or prerogatives of public power. However, the Human Rights Defender states that “with the exception of jobs linked to the exercise of national sovereignty or prerogatives of public power, the principle of restricting access to certain jobs on the basis of nationality is not justified”.296

With the exception of sovereignty posts,297 non-EU nationals have access to the civil service bodies and job categories298 that correspond to the functions they previously held, particularly in another European country. When European nationals are seconded, they are paid by their French host administration.299 To this end, they benefit from the social protection and pension schemes applicable to the positions they hold in this administration.

Foreign nationals from the European Union can be recruited under contract (CDD or CDI) as members of the French civil service.

Non-EU foreign nationals can be recruited under contract (fixed-term or open-ended contract) as civil servants in the French civil service. There is no nationality requirement to be recruited as a contract employee in the three civil services. However, foreign nationals must hold a valid residence permit. There is also a diploma requirement, as most competitive examinations to become a civil servant require a certain level of qualifications. As a candidate under contract, it may be required that the foreign national hold the diploma that would be required of a civil servant to occupy the same post.

In addition, in the care sector, the jobs of care assistant and nurse are regulated professions, i.e. professions that can only be practised with the authorization of a competent authority and the possession of a specific diploma or training,300 and applicants for employment must have the corresponding diploma. Like nationals, foreign nationals holding a foreign diploma must apply for their diploma to be recognized for access to the healthcare professions.

For access to the healthcare professions, the nationality requirement has been abolished for holders of a French diploma or equivalent issued by an EU Member State. A complex system of exceptional authorizations also exists for foreign doctors and French doctors with foreign qualifications. In addition to the diploma requirement, the general rules on physical fitness and experience apply equally to national and foreign applicants. However, as far as the employer is concerned, discrimination on the grounds of ethnic origin in particular is prohibited.

In addition, to facilitate access for migrants legally resident in France, exemptions from the work permit requirement have been granted for occupations in short supply. The sectors of activity identified as experiencing recruitment difficulties are listed by job family at national level. This is the case for nurses and care assistants in the care sector in France. Under French law,

The list of occupations in short supply is set out in the Order of 1st April 2021 relating to the issue, without opposition to the employment situation, of work permits to foreigners who are not nationals of a Member State of the European Union, another State party to the European Economic Area or the Swiss Confederation. According to the aforementioned decree, “the employment situation or the absence of a prior search for candidates already present on the labor market cannot be invoked against an application for a work permit submitted by a foreigner who is not a national of a Member State of the European Union, another State party to the European Economic Area or the Swiss Confederation wishing to work in a profession in one of the professional families and a geographical area characterized by recruitment difficulties…”.302 According to the most recent data available, the occupations most in demand in certain regions of France include those dedicated to the care sector, such as care assistants,303 nurses304 and home helps and household assistants.305

France has also signed bilateral agreements with certain countries on the management of migratory flows.306 These agreements allow foreign workers from the signatory countries to enter, reside and work in France in certain sectors of activity, without any restrictions on their employment status. The sectors thus opened up generally take account of the shortage occupations referred to in the aforementioned decree. This is the case, for example, with bilateral agreements on professional immigration between France and non-EU countries, particularly African countries. Similarly, some bilateral agreements include lists of short-staffed occupations that differ from those provided for under ordinary law (list annexed to the Order of 1st April 2021, ex. Order of 18 January 2008).

More concretely, there are two types of agreement: those for the concerted management of migratory flows (7 of which have been signed between France and African countries) and those relating solely to professional migration (3 in number) (it should be noted that this can be broader than just short-staffed occupations).

When the Immigration Bill was being examined at the end of 2023, there were heated debates and differences of opinion about whether it was appropriate, or even necessary, to create a “short-staffed occupations” residence permit. The plan was to facilitate the regularization of undocumented workers by granting them a residence permit to combat labor shortages in recognized shortage sectors, including the care sector. But the right-wing opposition managed to get a majority to remove this measure from the bill.

The 1990 United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which came into force on 1st July 2003, guarantees the international protection of migrant workers. The text aims to promote the rights of migrant workers in all countries and throughout the migration process of foreign workers and members of their families, and recognizes the rights of all migrant workers, including those in an irregular situation. To this end, and over and above strictly professional rights, foreign workers and their families enjoy human rights, including freedom of movement, freedom of thought, opinion, religion and conscience, freedom of expression, protection against arbitrary administrative action, enjoyment of the same rights as nationals before the courts, the right to the same treatment as nationals as regards working and employment conditions and remuneration; the same applies to social protection guarantees and the education of children. Like several European countries, France has not yet ratified this Convention.307 One of the reasons for this is that the Convention makes no distinction between legal and illegal aliens. French law makes a distinction between these two situations, even though it should be emphasized from the outset that undocumented migrants enjoy certain employment rights and social protection308 (see question 24 below), which is partly called into question by the new immigration law.

Legally resident foreign workers enjoy equal social rights with nationals, which is in line with France’s international commitments to the ILO. French law also complies with ILO Convention no. 118 on Equality of Treatment in Social Security of 28 June 1962 and Convention no. 97 on Migration for Employment (Revised) of 1949.309 However, Convention no. 143 on Migrant Workers (Supplementary Provisions) of 1975 has not been ratified by France.

In terms of European Union law, in 2015 France transposed Directive 2011/98/EU of 13 December 2011 on equal treatment for nationals and non-EU workers as regards working conditions and social security.310

In addition, France has signed bilateral social security agreements that deal exclusively with the right to social protection for migrants, and other bilateral agreements or treaties which, even if they do not deal specifically with social protection, may contain provisions guaranteeing equal treatment as regards social benefits.311

Some collective agreements applicable to the care sector refer to the status of foreign workers of the person working in the professions covered by these agreements. Originally, these provisions were designed to enable workers from the French overseas territories to travel to the French overseas territories during their holidays. For example, the collective agreement for the home help sector states: “In accordance with the legal and regulatory provisions and in order to allow workers from the overseas departments and territories working in mainland France and vice versa, as well as foreign workers whose country of origin is outside Europe, to go to this department or country, they are granted, at their request, every other year, the possibility of adding to their paid holidays the days of reduced working hours as well as a period of unpaid absence and the fifth week of paid holidays”.312 This request must be made at least 3 months before the start date of the leave. The total duration of this period of absence may not exceed 60 consecutive calendar days. A written certificate specifying the authorized duration of their absence is issued to the employees concerned at the time of departure. In the same spirit, other collective agreements in the healthcare sector do not specifically mention foreign workers. This is the case with the national collective agreement for private commercial hospital establishments, which states that “… Staff from overseas departments and territories working in mainland France may accumulate paid leave over 2 years”.313

To a different extent, the national collective agreement for private employers and home employment stipulates that

To our knowledge, there has been no court ruling on this subject.

French legislation on immigration to France includes a special system for care professions, which are among the so-called short-staffed professions for which it is not necessary to examine the employment situation as part of the work permit procedure (see above).

Migrants holding residence and work permits in the healthcare sector, as in any other sector, enjoy equal rights with other workers, as specified above in question 14.

French case law has highlighted the concepts of indirect discrimination, discrimination by association and discrimination without the requirement of comparison. These correspond to cases where people suffer multiple forms of discrimination, but where the prejudicial situation cannot be precisely proven due to the absence of comparable situations that would make it possible to establish the more favorable treatment of other people at work. In this way, the Cour de cassation and the CJEU, often by taking into account the structural dimension of indirect discrimination, get around the difficulties of comparability by looking at the real effect of the apparently neutral rule or decision which is applied unfavorably to a minority of more vulnerable employees.

In the case of a Cape Verdean domestic worker in an irregular situation who was dismissed without compensation and without recourse after nine years of loyal service, the High Court focused on the brutal and abusive nature of this decision, which is often experienced by these undocumented workers of African origin.315 The judges approved the classification of indirect discrimination, which, without saying so, characterizes multiple discrimination:

Who was in France illegally and not entitled to any claims, had resulted in the “employee” being denied her legal and contractual rights and in a totally disadvantageous situation compared with domestic employees who were covered by employment legislation, the Court of Appeal, which deduced from this that Mrs Z. had suffered clear indirect discrimination on the grounds of her origin, legally justified its decision on this count…”. The observations made by the lower courts on the context in which multiple discrimination arises show that the one-off disregard for the protection of employment law is linked to an abuse of rights regularly suffered by people working illegally.316

Of the six collective agreements studied, only three include provisions to promote the integration of foreign workers. The NCC for private hospitals of 18 April 2002 stipulates in article 42 of title IV: Employment contract; chapter 1st: Recruitment formalities—Hiring that

The NCC for the home help, support, care and services of 21 May 2010 stipulates in Article 24.2 “Workers from French overseas departments and territories and foreign workers” relating to the employer’s obligation under Title IV on individual employment relations; Chapter V. Events occurring in the employment relationship that

The NCC for personal services companies of 20 September 2012 stipulates in its Article 5 entitled “Priority audiences in the branch” of Part 3: Employment and career development policy; Chapter II. Continuing vocational training that

The NCC for private not-for-profit hospital, care, cure and nursing establishments of 31 October 1951, the national collective bargaining agreement for establishments and services for maladjusted and disabled people of 15 March 1966 and the NCC for individual employers and home-based employment of 15 March 2021 do not contain any provisions to promote the integration of foreign workers.317

We have no knowledge of this type of conflict.

To our knowledge, there is no specific study on the wages of migrant workers in the care sector. The only statistics that come close to this topic are to be found in an INSEE study from 2023, which provides a general analysis of the wages of immigrants and immigrant descendants: INSEE, Immigrés et descendants d’immigrés, 2023.

To our knowledge, there are no statistics or databases on the job classification and wages of migrant workers in the care sector.

First of all, it should be emphasized that in France, foreign nationals who are illegally resident and working enjoy identical rights, regardless of the sector of activity or profession in which they are employed. There is therefore nothing specific on this point for workers in the Care sector. Secondly, it should be pointed out that the concept of undocumented migrants refers to people of foreign nationality residing in France without a residence permit, including European Union citizens (and assimilated persons) residing in France without the right to reside there. Although EU nationals and people of equivalent status are not required to have a residence permit, they may not have the right to stay in France and may therefore be in an irregular situation. Although the term “undocumented” is usually used for people from third countries, there is a common set of rights for undocumented EU nationals and undocumented third-country nationals. However, EU nationals enjoy rights by virtue of their European citizenship.

For a long time, it was an offence for a foreign national to enter and/or reside in France illegally (without a visa or residence permit). The Act of 31 December 2012 abolished the offence of illegal residence in order to comply with EU law. Instead, however, it created the offence of remaining in the country illegally, which arises when the person fails to comply with a removal order or when it has not been possible to enforce the order despite being placed in detention or assigned to a residence permit.318 Evading or attempting to evade the enforcement of a removal order is punishable by 3 years’ imprisonment.319 In order to combat illegal employment, the law has amended the amount of the administrative fine imposed on any employer who employs a foreign worker who is not authorised to work in France, as well as a foreign worker in possession of a work permit, in a professional category, profession or geographical area other than those mentioned on his or her work permit. The new amount of this fine will be no more than 5,000 times the hourly rate of the guaranteed minimum (MG = 4.15 euros since 1-1-2024), i.e. a maximum of 20,750 euros in 2024 and increased in the event of repeated offences up to a maximum of 15,000 times this rate, i.e. a maximum of 62,250 euros in 2024.320 The fine is applied as many times as there are foreign workers concerned. This fine is in addition to the administrative penalties already in place and the criminal penalties also amended by the new Immigration Act.321

Finally, foreign workers without a residence or work permit enjoy both human rights (2.24.1) and rights resulting from their professional activity (2.24.2). Undocumented workers do not have a right to regularization, but they may have recourse to the applicable law (2.24.3).

To our knowledge, no legal action has been taken on this issue. However, one case received media coverage during the debate on the immigration bill. A Beninese nurse’s aide in a nursing home threatened with deportation was offered a residence permit.342

The only measure taken by the French government in relation to essential workers who have enabled the country and French society to maintain essential services was the so-called Shiappa circular of 14 September 2020, which accelerated and facilitated the naturalization process for the foreign workers concerned. But these were only workers whose residence and work status were legal.

No measures have been taken concerning undocumented workers in any sector. The only so-called essential undocumented workers to have obtained temporary regularization are the workers at the Frichti meal delivery platform following their strike in June 2020.

Only one survey was carried out in 2022 jointly by the Defender of Rights and the ILO on discrimination in the care sector (see conclusion). With regard to the prohibited ground linked to the national origin of workers, the results of the survey provide the following information:343

Certain grounds for discrimination are identified more often by women working in the sector: physical appearance (58% think that people are often discriminated against because of their physical appearance, compared with 49% of the working population), origin or skin color (56%, compared with 53%). Other criteria are associated with origin: nationality (45%), difficulty speaking French (41%) and religion (40%). The other forms of discrimination considered to be widespread are those linked to gender identity (52%), sexual orientation (50%), being a woman (35%) and economic insecurity (33%). These forms of discrimination are most often encountered when looking for a job.

The criterion of foreign origin is the one most often invoked in cases of discrimination in recruitment.344 The following are examples of decisions by the High Authority against Discrimination (Haute Autorité de lutte contre les discriminations)-HALDE-.

“The High Authority was informed of a refusal to register for the competitive entrance examination for training as a nursing auxiliary based on the failure to take into account residence permit application receipts. The legitimate aim of this requirement may be to ensure that applicants remain in France on a long-term basis. However, people who have been granted refugee status are automatically entitled to a residence permit, and the refusal to grant them one must therefore be considered unjustified and discriminatory. The HALDE recommends that the conditions for entry to the nursing auxiliary competitive examination be adapted”.

Thus,

However, according to the deliberations of the Human Rights Defender (Halde, 2009),

With regard to the recruitment of foreign healthcare staff, the problem may arise with regard to the recognition or equivalence of diplomas, which are necessary to practise the healthcare professions, in this case the professions of nurse and care assistant. Foreign workers who can prove that they have a diploma obtained in France or recognized by French legislation are eligible for recruitment under the same conditions as French applicants. Once recruited, foreign workers, like all employees, must not suffer any discrimination in the course of their careers or in their career development within the industry, whether in terms of access to training or promotion, pay or professional mobility.345

The Human Rigths Defender (Défenseur des droits) carried out a survey in 2022 on “The perception of discrimination in employment in the personal services sector”.346 Considered to be “new figures in unskilled employment”,347 women working in personal services are at the crossroads of inequalities linked to gender, social class and national origin. Studies on this sector reveal a close relationship between working conditions, social insecurity and discrimination, which refers more broadly to systemic discrimination issues, particularly in the highly feminized cleaning and care professions.348 The discrimination criteria most cited by female employees in the personal assistance sector are physical appearance (58% think that people are often discriminated against in France because of their physical appearance, compared with 49% for the working population as a whole) and origin or skin color (56% compared with 53%) […]. As with the working population, other criteria that may be related to origin are also frequently cited: 45% of respondents in this sector believe that people are often discriminated against in France because of their nationality, 41% because of their difficulties in expressing themselves in French and 40% because of their religion.349

With specific regard to personal services workers of foreign origin who are perceived as non-white, sociological research,350 particularly on home helps, has documented the prevalence of racial prejudice and discrimination (linked to origin and nationality) in this sector of activity, particularly in large cities.351 The results of this work were confirmed by the Human Rigths Defender in its 2022 survey of the personal services sector.352 In particular, it shows that the profile of immigrant workers or those from overseas France is different from the rest of the working population in the sector: some of them are better qualified and sometimes worked in skilled jobs before migrating. When they are recruited as home helps or once they are in their jobs, female candidates often undergo implicit selection tests that “white candidates” do not face: they are less often employed full-time, because they are subject to an implicit “trial period”, they are more likely to be assigned elderly people deemed to be more “difficult”, they are subject to increased surveillance and are more easily dismissed than their white colleagues.353 The complexity of renewing a residence permit also encourages harassment, exploitation and modern slavery among undocumented domestic workers.354 Lastly, employees in the sector are often confronted with racist comments or prejudice, whether from the organization’s staff or from the beneficiaries of the services. Observation of recruitment interviews with childminders shows the decisive role played by origin and skin colour in professional assessment (North African women are perceived as strict but responsible, African women as nonchalant but maternal, Colombian women as docile but devious, etc.).355

To combat discrimination on the grounds of origin, across all sectors of activity, many workers are in favour of the measure consisting of “evaluating recruitment procedures to ensure that candidates from ethnic minorities have as much chance of being called for interviews or hired as other candidates with the same skills and qualifications”.356

There is no legislation on harassment specific to domestic workers. As we indicated previously, the French legislator prohibits two types of sexual harassment: The first consists of repeated comments or behaviors with sexual or sexist connotations, which either undermine the dignity of the employee due to their degrading nature or humiliating, or create an intimidating, hostile or offensive situation against him. The second form of sexual harassment is based on a single act of particular intensity in that sexual harassment is considered “any form of serious pressure, even not repeated, exercised with the real or apparent aim of obtaining an act of a nature sexual, whether it is sought for the benefit of the perpetrator or for the benefit of a third party”.

On the other hand, domestic workers risk being confronted, more than other employees, with a problem of proving harassment due to the solitude of exercising their profession.

Traditional accepted means of proof such as the testimony of work colleagues or emails are not used by employees working in the homes of people in a dependent situation; and audio recordings made clandestinely are not admissible before an industrial tribunal because they are contrary to the principle of fairness of proof in labor law.

France has ratified ILO Conventions 29 and 105. The ILO Member States have overwhelmingly adopted the Protocol of 2014 to the Forced Labor Convention, 1930, and the Forced Labor (Supplementary Measures) Recommendation, 2014 (no. 203), which complement the Forced Labor Convention, 1930 (no. 29), and existing international instruments by providing specific guidance on effective measures for the prevention, protection, remedy and elimination of all forms of forced labor.

According to the ILO, forced labor can be imposed on adults and children by state authorities, private companies or individuals. It can be observed in all types of economic activity such as domestic work, construction, agriculture, garment manufacturing, sexual exploitation, forced begging, etc. in all countries. The Forced Labor Protocol explicitly reaffirms the definition of forced labor, which includes the following three elements:

Under French law, the offence of trafficking in human beings is defined in Article 225-4-1 of the Criminal Code as follows:

The exploitation referred to in the first paragraph of this I is the act of placing the victim at his or her disposal or at the disposal of a third party, even an unidentified third party, in order either to enable the commission against the victim of the offences of procuring, assault or sexual molestation, reduction to slavery, submission to forced labour or services, reduction to servitude, removal of one of the victim’s organs, exploitation of begging, working conditions or accommodation contrary to the victim’s dignity, or forcing the victim to commit any crime or offence.

Trafficking in human beings is punishable by seven years’ imprisonment and a fine of 150,000 euros.

The law governing the entry and residence of foreign nationals in France recognizes the rights of victims of human trafficking, which are presented to them by the police or gendarmerie when they lodge a complaint against the perpetrators of this offence:

The police or gendarmerie service will also inform the foreign national that he/she may benefit from a period of reflection of thirty days, under the conditions laid down in article R. 425-2, to decide whether or not to benefit from the possibility of admission to the residence permit referred to in 1). This information will be given in a language that the foreign national understands and in conditions of confidentiality that will ensure the foreign national’s trust and protection. This information may be provided, supplemented or developed for the persons concerned by non-profit private law organizations specializing in support for prostitutes or victims of human trafficking, in assistance for migrants or in social action, designated for this purpose by the Minister responsible for social action.

Any foreign national to whom a police or gendarmerie service provides the information mentioned in article R. 425-1 and who chooses to benefit from the thirty-day reflection period provided for in the same article will be issued with a receipt of the same duration by the Prefect or, in Paris, by the Police Prefect, in accordance with the provisions of article R. 425-3. This period runs from the date of issue of the receipt. During the reflection period, no deportation decision may be taken against the foreign national in application of article L. 611-1, nor may it be enforced.

The reflection period may be interrupted at any time and the receipt referred to in the first paragraph withdrawn by the territorially competent Prefect, if the foreign national has, on his or her own initiative, renewed links with the perpetrators of the offences referred to in article R. 425-1, or if his or her presence constitutes a serious threat to public order. A receipt issued on application for a residence permit may be issued to a foreign national who requests to benefit from the reflection period provided for in article R. 425-1 and who is reported as such by a police or gendarmerie service. This document authorizes the holder to work.358

During the reflection period provided for in article R. 425-2, foreign nationals are entitled to work and to vocational training. They may also benefit from:

Care provided abroad is reimbursed under the conditions set out in the fourth paragraph of article L. 251-1 of the French Social Action and Family Code (Code de l’Action Sociale et des Familles).359

In accordance with article R. 425-5 of the Ceseda, a temporary residence permit bearing the wording “private and family life” is issued by the territorially competent prefect to a foreign national who meets the conditions defined in article L. 425-1. The same temporary residence permit may also be issued to a minor of at least sixteen years of age who meets the conditions set out in this article and who declares that he or she wishes to work in an employed capacity or undergo vocational training. The application for a temporary residence permit must be accompanied by a receipt for the foreign national’s complaint or a reference to the criminal proceedings involving his or her testimony. In accordance with article R. 425-7 of the Ceseda, this card entitles the holder to: