Harassment cases call for a two-stage analysis : the employee puts forward facts suggesting harassment, after which it is for the employer to prove that the conduct does not amount to harassment and that its decisions rest on objective factors unrelated to it. The Court of Cassation has applied that framework to two sexually suggestive text messages.
In this case, an employee had received two text messages from her managing director with sexual connotations, to which she replied asking him to stop. The Court of Appeal accepted that the messages were suggestive of sexual harassment, but dismissed her claim on the ground that the sender had apologised, had not persisted and had later entrusted her with an interim management role, and that she had supported him in various proceedings, so that the messages were merely ‘isolated acts’.
The Court of Cassation quashed that decision. Those circumstances concerned the parties’later behaviour and the victim’s attitude ; they did not establish objective factors unrelated to harassment, which alone can rebut the presumption. Above all, repetition is demonstrated as soon as there are two occurrences, meaning two text messages are not ‘isolated acts’.
The lesson is that, once an employee has put forward facts suggesting harassment, their employer cannot ‘neutralise’them by pointing to the author’s apologies or to the victim’s later cooperation ; only objective factors unrelated to harassment will do so.
