France strengthens its regulation on gender diversity

French legal rules already comprise mandatory provisions relating to gender diversity for the board of directors and corporate officers in companies of certain corporate forms and sizes (see our Pan-EU study on this topic dated May 2021). However, many criticized that parity stopped at the “power gates” as French rules did not extend to any other management/strategic/commercial roles. Therefore, politicians and lobbyists actively claimed for an additional set of provisions to be adopted covering senior executive teams and decision-making bodies in order to achieve a balanced representation of the two genders where business decisions are actually taken. Within this context, Marie-Pierre Rixain, a deputy and president of the delegation for women’s rights and equal opportunities between men and women, rendered her law proposal on 23 March 2021 to the French National Assembly to accelerate economic and professional equality.

After many amendments, the Law No. 2021-1774 of 24 December 2021 (known as the Rixain Law) was adopted and provides new rules concerning gender diversity requirements within French companies.

Gender quotas from 30% (2026) to 40% (2029) applicable to management bodies and senior executives of large companies

As from 1st March 2026, large French companies (> 1,000 employees over the past three years) of any corporate form, will be required to ensure that the proportion between the two genders within their senior executives (cadres dirigeants) and members of their management bodies (instances dirigeantes) may not be less than 30%. This quota will increase to 40% as from 1st March 2029.

Under French labor law, senior executives are defined as the employees (ie not being corporate officers) who (cumulatively) “are entrusted with responsibilities implying a high degree of independence in the organization of their time, who are empowered to make decisions largely autonomously, and whose remuneration is at the highest levels of the remuneration systems applied”.

Management bodies are newly defined by Rixain law as “any body set up within the company, by any act or corporate practice, for the purpose of assisting the governance bodies in charge of the management within the performance of their duties”. This definition will include in particular the executive committees (CoMex) and the management committees (CoDir) of companies.

Corporate officers and mandatory legal corporate bodies are not affected by the provisions above. From a strict reading of Rixain law, its provisions should however apply to the board of directors or supervisory committees which can (optionally) be created in French sociétés par actions simplifiées, and inserted in their articles of association, as they are not legally mandatory bodies.

Companies failing to meet the above quotas will be required:

• to discuss corrective measures during the mandatory negotiations on professional equality with employees' representatives. Failing to reach an agreement, the employer will unilaterally determine these corrective measures after consultation with the social and economic committee. The labor administrative authority may make observations on the planned measures; and
• to publish within one year their improvement targets and the corrective measures adopted, and they will benefit from a two-year period to comply. At the expiry of this two-year grace period, the company may be subject to a financial penalty set by the labor administrative authority taking into consideration the company's initial situation, the efforts made by the company in terms of gender representation as well as the reasons for its failure. The maximum penalty that may be imposed is an amount equal to 1% of the aggregate payroll.

Changes to the gender parity index (index Penicaud)

French companies having more than 50 employees must already publish on their website each year the results of an index on equality between genders based on five criterions, and the aggregated score (based on 100 points) is published on the website of the French Ministry of Labor. Loi Rixain states that as from 2022, the details of the results of the five criterions will be published on the Ministry’s website. Furthermore, companies with a score below 75 points over 100 are now required to communicate internally and externally the corrective measures identified, and the targets for improvements.

Large companies (>1,000 employees over the past three years) are now also required to publish each year any gaps between the number of women and men within their senior executives (cadres dirigeants) and members of their management bodies (instances dirigeantes). As from 2023, these gaps will be made public on the website of the French Ministry of Labor.

Diversity rules applicable to other legal entities

• Portfolio management companies (sociétés de gestion de portefeuille) are now required to define each year a targeted balanced representation of the two genders within their different teams, bodies and managers in charge of investment decisions, and to provide the results achieved in their annual document made available to their investors and the public.
• French Public Investment Bank (Banque publique d’investissement “Bpi”) (i) must ensure that the proportion of each gender within its investment committees is at least 30% as from 1st March 2022 (increased to 40% as from 1st March 2026) and publish this information, and (ii) must set improvement targets concerning the companies to which it provides its financial support, and publish them. As from 1st March 2023, Bpi financial support can be granted only to companies complying with their obligations under Index Penicaud mentioned above. More generally, Rixain law sets as a general principle the fact that Bpi will only provide its financial support to companies active in favour of gender equality in the workplace.

Authors: Anne Reffay, Partner