Preuve des discriminations: la consécration française d’un «droit à la preuve» permet-elle de mieux garantir les droits des victimes?
Abstract: The proof is a key dimension in the fight against discrimination before the courts. Employees often lack sufficient evidence to establish unequal treatment, and the elements available to workers often cannot be used as they might violate the privacy rights of other workers. The case law of the ECHR and ECJ attempts to overcome these obstacles with various tools, such as the principle of equality of arms, a part of the equitable procedure, and the concept of the effectiveness of substantive law. France, with its different legal tradition, addresses this issue through the means of a “right to proof” granted to litigants. On the surface, this notion seems protective of victims of discrimination, as it allows them to claim a fundamental right to produce evidence on par with other workers’ fundamental rights and the right to business secrecy. Indeed, this evolution has led to significant changes in the access and use of data in discrimination litigations. However, the idea of a “right to proof” is theoretically difficult to explain, and the protection offered to litigants is not entirely clear. It is fully dependent on the application of a proportionality test, the outcome of which is rather uncertain.
