For several months now, HR departments have been preparing for the entry into force of European Directive (EU) 2023/970 on pay transparency.
Reporting pay gaps, new disclosure requirements, and the reversal of the burden of proof: all eyes are on the upcoming French transposition law and the 2026–2027 deadlines.

But in practice, many companies are looking at the wrong deadline.
Because the real increase in litigation risk has already begun. And it doesn’t come solely from Brussels.
In 2023, several decisions by the Labor Chamber of the Court of Cassation significantly strengthened employees’ legal recourse regarding equal treatment and pay.
These rulings have received relatively little attention outside specialized circles, even though they are already very concretely changing the way wage-related litigation can be initiated—and won.
In other words: even before the European framework has fully come into force, French judges have already begun to raise the standard of proof required of employers.

What the Court of Cassation has already changed

First major development: the justifications traditionally cited to explain a pay gap are now assessed much more strictly.
In two rulings handed down on May 24, 2023 (Cass. soc., No. 21-21.902) and September 13, 2023 (Cass. soc., No. 22-11.338), the Court of Cassation reiterated that degrees, prior experience, or the level of qualifications at the time of hire can only justify a pay gap on a long-term basis if they have a concrete, objective, and consistently relevant connection to the duties actually performed.
The message is clear: invoking a “better profile” or “greater experience” is no longer sufficient if the employer cannot demonstrate their actual and current utility.

Second major development: the employee’s right to evidence.
In a ruling dated March 8, 2023 (Cass. soc., No. 21-12.492), the Court of Cassation ruled that an employee may obtain, through legal proceedings, the pay stubs of colleagues in order to establish a comparison group in an equal treatment dispute—including the full names of the employees concerned when such identification is necessary to exercise the right to evidence.
The practical implications are significant: pay gaps are now much easier to objectively assess in labor court proceedings.

Why the topic becomes immediately actionable

The European directive will obviously amplify this trend: transparency starting with recruitment, expanded access to salary data, reporting requirements, and stronger presumptions regarding discrimination.
But the key point lies elsewhere: companies no longer really have a comfortable lead time to prepare.
The risk of litigation is already present.
Because the real question is no longer simply whether pay gaps exist.
The question now is: Is the company capable of explaining them, documenting them, and defending them legally several years after the decisions were made?

Habits to adopt right away

Most companies are not weakened by the existence of pay gaps. They are weakened by the lack of a method to justify them. In practical terms, several points become essential:

  • Establish clear and consistent compensation criteria;
  • Document major salary decisions;
  • Re-examine historical pay gaps;
  • Standardize recruitment practices;
  • Prepare managers to objectively explain salary decisions;
  • Conduct internal audits before employees make their first requests.

The companies that will navigate this change most successfully will not necessarily be those that have eliminated all pay gaps.
They will be those capable of demonstrating that these gaps are based on objective, consistent, documented criteria that are periodically reviewed.