Anyone who has participated in job hunting and tried to find a job knows it. Anyone who hasn't found a job knows. In today's employer's "buyer's market", job seekers are often discriminated against for various reasons, even ridiculous, as summarized below:
Height discrimination. This is very common. The salesgirl is 158 cm tall, handsome, cheerful and lively. . . Ask for something like a beauty pageant. Because everyone has seen too much, I think this is a matter of course!
Surname discrimination. It is reported that a girl plans to be a shop assistant after graduation. She interviewed a boss who deals in cloth. The boss intended to hire her, but as soon as he heard that the girl's surname was Pei, he changed his mind immediately. Since then, more than a dozen job applications have been rejected because of the girl's surname "Pei".
Sexism. Many enterprises shut women out when recruiting employees. Under the same conditions, female candidates will be considered unless they are particularly excellent, but there is no such requirement for men. This is the legendary' ugly man Wu Dalang is better than talented woman Mu Guiying'! !
Experience experience discrimination. In some job advertisements, there is often a requirement for "experience", which makes some college students or talents with no work experience flinch. In fact, some positions do not rely too much on experience, and only need short-term contact or training to be competent. How do college students who have just left college have more than two years of sales experience (not excluding individual cases) and * * * * * * experience? Personal experience is also a very important factor for candidates. People who have a criminal record or have been in prison will encounter obstacles and thorns everywhere. Therefore, everyone must think rationally and calmly about their lives, and don't take the road of no return! ! !
Academic qualifications school discrimination. Many enterprises often regard master's degree and doctor's degree as hard criteria in the recruitment process, but in fact, a college degree is enough to be qualified for the required talents, and there is no need to hire master's degree and doctor's degree with high salary, resulting in unnecessary waste of human resources; Some enterprises have a soft spot for famous universities, and non-famous graduates are not hired; And some enterprises prefer "turtle (return)", and there is a saying: "Turtles go ashore, and soil turtles go far".
Blood group discrimination. A company hired a sales director and a domestic and international marketing manager without hesitation. In addition to high education, years of working experience in large enterprises and outstanding management and development ability, there is also a condition: blood type is O or B, and blood type is rarely required when recruiting. ? Is the company as obsessed with constellations as girls?
Geographical discrimination in household registration. Now there are many jobs in major cities that foreigners are not allowed to set foot in, that is, household registration discrimination. It is expressly stipulated in Beijing that some industries restrict the use of outsiders, such as managers, salesmen, accountants, cashiers, dispatchers, front desk attendants of star-rated hotels, cashiers, telephone operators, price assessors, taxi drivers, office secretaries, etc. And these jobs are not allowed for foreigners who don't have a Beijing hukou. In addition, regional discrimination is also quite serious, such as "Who did Henan people provoke?" Books such as Don't Mess with Northeasters all reflect the serious situation of regional discrimination.
Similar employment discrimination is too numerous to mention. According to the provisions of the United Nations International Covenant on Economic, Social and Cultural Rights, everyone should have the right to make a living through the work he freely chooses and accepts, and will take appropriate steps to protect this right. However, in reality, citizens' equal employment rights are constantly castrated.
In view of the above-mentioned employment discrimination, some NPC deputies and CPPCC members suggested that China needs to enact the Anti-Employment Discrimination Law, clearly establish the legal principles of employment equality and prohibition of employment discrimination, and government departments should perform the supervisory function of discrimination in the employment market. In fact, China's legislation is lagging behind. Many countries in the world have laws prohibiting age discrimination in employment. For example, the United States has the Employment Age Discrimination Act, which prohibits arbitrary age discrimination. However, the lack of legal protection of individual employment rights and employment opportunities in China has greatly increased the cost of social employment, reduced the total social welfare level, and caused improper allocation and serious waste of human resources.
Good law is the embodiment of human rationality, and at the same time promotes people to form rational concepts. If we continue to condone this blatant employment discrimination and ignore the disadvantaged groups, how can the fair value and order value of the law be reflected? In the United States, where "all men are created equal", few people dare to provoke the power of law so arrogantly! The same case of height discrimination has occurred in Chongqing and other areas under the condition that the examination conditions for civil servants in China have not been revised, but it is precisely because there is no clear law to protect this vulnerable group that employment discrimination is still repeated in real life! Therefore, in my opinion, in order to protect the legitimate rights and interests of workers and ensure that all kinds of people get equal employment opportunities in the labor market, it is imperative to enact the Anti-Employment Discrimination Law to prohibit any form of discrimination in the labor market, including race, gender, age, region, household registration, appearance, height, education and so on.
Legislative reasons and legal definition of prohibiting employment discrimination
In recent years, with the concept of human rights protection deeply rooted in people's hearts, the problem of employment discrimination (also known as occupational discrimination) has gradually emerged and attracted wide attention from the society. As far as the present situation is concerned, the provisions on employment discrimination in China's legislation are imperfect and lack of maneuverability; Legal theory also failed to form a reasonable and unified view of employment discrimination; And the discrimination barriers in local laws and departmental rules are everywhere. Therefore, it is urgent to legislate against employment discrimination. This paper only studies the legislative reasons and legal definitions of employment discrimination.
The general meaning of "discrimination" now is to treat and consider differently according to class or group, not according to individual's specialty or advantage. Although the above definition is too broad, discrimination itself is indeed a neutral word, especially in economics. Based on this, there has always been a debate in economics and even law circles about whether anti-discrimination should be carried out. As for how it gradually evolved into a derogatory term, some scholars described it this way: "Qi" refers to a fork, and "seeing" refers to treating it, that is, "treating it separately" in the vernacular. Unfortunately, the word "discrimination" was later extended to the wrong one in several forks, and the word "discrimination" was also derogatory. In fact, not all differences are unreasonable, because for individuals, differences exist, including differences in innate attributes and differences formed by acquired efforts. According to the differences formed by acquired efforts, such as skills, it is precisely the driving force to promote human development. However, only differential treatment based on differences in natural attributes is discrimination. Even with such strict restrictions, this universal discrimination is far beyond the scope of our discussion. This article will only focus on "discrimination in the legal sense" to discuss "employment discrimination".
First, the legislative reasons for prohibiting employment discrimination
(A) the reasons for opposing legislation to prohibit employment discrimination
1, the basis of supporting discrimination in economics
The first concern about discrimination is economics, not law. In economics, there are many theories supporting discrimination. Economists believe that the root of discrimination lies in the scarcity of resources. Because of the scarcity of resources, it is decided that there must be a competitive market to make the most effective use of resources. Competition inevitably means selection and elimination, and this process also inevitably requires rules. According to various competition rules, people are divided into different groups. Economists believe that there are many sellers and buyers in a perfectly competitive market, and none of them has a significant impact on the price. According to economists, in a fully competitive market, incorrect discrimination cannot be maintained. Therefore, we can always observe the phenomenon that rich people can take limousines, beautiful girls can take part in beauty contests, those who study well can go to famous universities, and those who are tall can play basketball and so on. These are the universal rules of this competitive society. "It can be seen that" competition "and" discrimination "are inseparable brothers, two sides of the same coin and two versions of the same phenomenon." Therefore, free competition inevitably means discrimination. As long as we need competition, it is unnecessary and impossible to eliminate discrimination.
2, the necessity of enterprise employment autonomy
Some scholars believe that if "employment discrimination" is applied to private or wholly-owned enterprises, it will return to the old system in which the government and society directly intervene in their employment autonomy. What enterprises pursue is boasting about profits, not "moral care" in theory. Therefore, it is impossible to combat employment discrimination through legislation. When all enterprises change the concept of talents, when the evaluation standard of talents in the whole society tends to be rational, and when the labor force is no longer extremely surplus, employment discrimination can naturally be solved.
Some scholars further believe that all human choices are discriminatory. Employment discrimination is just that enterprises are "getting what they need". How can this not "increase the cost of social employment and reduce the level of social welfare"? It is even considered that "discrimination" puts people in the most competent position. Only in this way can society develop better. In a word, some people think that "employment discrimination" is ruthless and necessary. Only by implementing "employment discrimination" can enterprises find suitable employees and develop, so they should not legislate to prohibit employment discrimination.
3. Freedom of contract and maintenance of legislative authority.
On the basis of freedom of contract, some scholars believe that workers and employers have the right to choose whether to sign a contract, and merit-based admission is inevitable to exercise this right, so "discrimination" is a special form of two-way "merit-based admission". Moreover, the freedom of contract determines that only when both parties reach an agreement will the contract be signed, so it cannot be considered as discrimination. Furthermore, "legislation is a sacred and serious matter, and we cannot legislate because of it." Moreover, without law, there is no law without law. This can't be solved and eliminated by legislation, because invisible standards are difficult to restrain. "
(B) the reasons for enacting anti-employment discrimination legislation
Although there is still controversy about whether to legislate against employment discrimination, most scholars agree. We think the above objections are immature and unfounded. On the basis of summarizing the existing theories, we put forward four legislative reasons.
1, the need to realize basic human values
Freedom and justice are basic values of human beings. In order to realize these values, there are many systems to choose from. Traditional economics advocates free competition market, while institutional economists believe that free competition market does not necessarily produce equality. Coercion by powerful individuals or groups can always break the freedom of competition. This is also one of the main reasons why we need the government: to ensure that everyone can be protected in this situation. Since freedom and justice are the basic values of human beings, we must determine the standard of justice and choose between "procedural justice" and "social justice". The so-called procedural justice means that individuals and authorities should treat others equally under the same circumstances; Social justice refers to equality of results, that is, social status and communication results should be equal. But obviously, social justice is incompatible with the realization of freedom and prosperity, so it is not an appropriate choice for modern society. Procedural justice inevitably requires the protection of the same basic rights regardless of race, religion, wealth or kinship. In other words, procedural justice means that everyone is equal before the law, so discrimination must be overcome or even eliminated.
2. The demand of "harmonious society"
The Fourth Plenary Session of the 16th CPC Central Committee put forward the development goal of building a "harmonious society", and the first characteristic of a harmonious society is mutual opening and equal access among social classes. At the critical moment of economic development, we are faced with severe employment problems and the gap between the rich and the poor. If we can't guarantee the labor rights of all groups, including equal employment, it is likely to cause some social unrest and unrest. Take the discriminated hepatitis B patients as an example. In addition to the vicious incidents such as Monday's murder, we have noticed all kinds of fierce words, such as "I am a hepatitis B patient, but I am not a second-class citizen" and "Will Monday Chao become Sun Zhigang because of hepatitis B discrimination". As many as 87,424 netizens registered in the famous forum "Treat each other sincerely". These phenomena remind us that we must face up to the problem of discrimination in society, and employment discrimination involves people's right to exist.
3. Legislation against discrimination is the way to protect basic human rights.
Under the leadership of the Party, China has always attached importance to safeguarding and safeguarding human rights. The 15th National Congress of the Communist Party of China pointed out "respecting and protecting human rights", and the 16th National Congress of the Communist Party of China reiterated the policy of "respecting and protecting human rights" and put forward "people-oriented" and "promoting people's all-round development". In 2004, the Constitution further clearly stipulated that "the state guarantees and respects human rights". In recent years, China has acceded to the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and other international human rights conventions and documents as many as 2 1. The right to work is a basic human right. Although the unit should have the right to freely select people, it is bound to violate the basic human rights of special groups by arbitrarily appointing and treating them differently for reasons unrelated to the nature and needs of the work. In addition, "non-discrimination, equality before the law and equal protection against discrimination before the law are a basic principle for the protection of human rights". Therefore, it is necessary to intervene by the state and guide and correct the existence of employment discrimination through legislation, so as to establish a more perfect human rights protection mechanism.
4. The inevitable choice to improve the existing laws.
Legislation prohibiting employment discrimination does not exist in China, but it is abstract and lacks maneuverability. China's Constitution clearly stipulates that "all citizens are equal before the law" and "citizens have the right to work". The combination of these two articles is the constitutional origin of the prohibition of employment discrimination in China. As for the departmental law, although the labor law also explicitly prohibits the discrimination of "nationality, race, sex and religious belief" in employment, and further stipulates that "women enjoy equal employment rights with men", it lacks specific rights relief procedures and civil liabilities. In fact, the Ministry of Labor and Social Security has conducted a survey of occupational supply and demand in the labor market in 62 designated cities. The results show that 67% of employers put forward gender restrictions or explicitly stipulated that women should not have children during their employment. The enactment of the Anti-Employment Discrimination Law is not only to further clarify the legal principles of employment equality and prohibition of employment discrimination, but also to make specific and operable provisions. Government departments should perform their supervisory functions on discrimination in the employment market.
Second, the legal definition of employment discrimination
(1) Definition of employment discrimination in international treaties
In order to achieve the goal of anti-discrimination, with the joint efforts of various countries, regions and international organizations, a series of international treaties have been concluded, trying to set the lowest standards and examples for anti-discrimination in various countries and regions. These instruments include: International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women, and ILO Convention19961997. 195 1 on labor rights, ILO convention 1 1. Convention 100 on equal pay for equal work between men and women and ILO Convention 165438 on employment.
These conventions define specific discrimination. Although each convention is limited to the specific type of discrimination it aims to eliminate, these definitions are of great reference value for us to clearly define employment discrimination in law.
For example, Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women stipulates that "… the term discrimination against women refers to any distinction, exclusion or restriction made on the basis of sex, and its function is to hinder or destroy women's enjoyment of human rights and fundamental freedoms on the basis of equality between men and women, regardless of whether they are married or unmarried"; However, ILO Convention 1999. 1 1 1 Regarding discrimination in labor and occupation, it is believed that discrimination is based on race, color, sex, religion, political opinion, national origin or social origin, and its consequence is to cancel or damage any distinction, exclusion or preferential treatment of equal opportunity or equal treatment in labor or occupation. However, any distinction, exclusion or preferential treatment based on the inherent needs of a particular job does not constitute discrimination. "Labor" and "occupation" include obtaining business training, obtaining jobs and special occupations, and labor terms and conditions. The definition provided by Convention 1011gives a relatively complete and comprehensive definition of employment discrimination from three angles: the causes of discrimination, the existing fields and the infringed rights. At the same time, it excludes legal unequal treatment. This definition is particularly worth learning and using for reference.
However, when referring to the definition of discrimination in international conventions, we can't ignore another related concept that is regarded as an exception to discrimination, that is, positive behavior (sometimes called affirmative action). Positive action refers to the behavior that the law forces or the employer voluntarily gives preferential treatment to some legal groups to correct the existing discriminatory behavior. Positive behavior is a tool to achieve de facto equality. The administrative instruction of the Secretary-General of the United Nations on taking temporary special measures to increase the gender ratio of female officials at all levels of the United Nations to 50/50 is a typical example. Paragraph 4 of Article 65-438+0 of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates that such special measures "are taken exclusively for the full development of certain racial or ethnic groups or individuals that must be protected to ensure that such groups or individuals enjoy or exercise human rights or fundamental freedoms equally, and shall not be regarded as racial discrimination".
(B), the definition of anti-employment discrimination in other regions and countries
1, EU
When introducing the definition of employment discrimination in EU, it should be noted that before EU legislation, the case law has defined the meaning of discrimination in advance. The case law of the European Union clearly points out that not all discrimination is equal to prohibited discrimination, and only those without objective or reasonable reasons, that is, those who do not pursue a reasonable purpose or whose means are not commensurate with the purpose, are prohibited discrimination. On this premise, the agreement number. Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is applicable to EU member states, stipulates that "in view of the basic principle that everyone is equal before the law and has the right to equal protection of the law", "any rights enjoyed according to law shall be guaranteed, regardless of gender, race, color, language, diplomatic relations, political or other opinions, national or social origin, etc." It should be noted that according to the report on the interpretation of the Protocol, this definition is an exhaustive list. Other categories, such as physical or mental disability, sexual orientation and age, are not listed in order to be consistent with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, so as not to make member States mistakenly think that if they are not listed, they are not within the scope of protection. The first article of the European Union's Basic Framework for Equal Treatment in Labor and Occupation has made more specific provisions on employment discrimination. In this directive, employment discrimination includes direct discrimination and indirect discrimination. The directive first stipulates that the types of discrimination are limited to religion or belief, disability, age or sexual orientation. Then it points out that direct discrimination refers to giving another person bad treatment with similar conditions for the above reasons. Indirect discrimination refers to the situation that the application of seemingly neutral conditions, standards or practices will put a certain group at a disadvantage because of different groups, unless there is a legitimate purpose and it is necessary and appropriate to achieve that purpose.
2. Other countries and regions
In other countries and regions, the legal regulation mechanism of discrimination is relatively scattered and can be roughly divided into two categories. One is a country with equality and perfect legal system. All these countries have laws that explicitly prohibit direct and indirect discrimination, establish independent institutions to help those who are discriminated against, and stipulate positive behaviors to ensure the realization of equality. Typical countries under this list include the Netherlands, Ireland, Italy, Belgium, Britain and Sweden. In other countries, it is scattered in many laws, and there is often no sound system to protect individual litigation. Here, only Ireland is taken as an example to introduce the provisions of the first category of countries.
1998 Ireland enacted the Employment Equality Act, which came into effect on 10/9, 2008. Article 6 stipulates that direct and indirect discrimination based on gender, marital status, family status, sexual orientation, religious belief, age, disability, race and country is prohibited in any aspect related to labor relations. In addition, it is also prohibited to harass employees in the workplace for the above reasons. Employers are obliged to take reasonable measures to avoid harassment in the workplace. The law applies to public institutions and the private sector, including trade associations, professional associations and employment agencies. As for positive behavior, only people over 50, disabled people and foreigners are allowed in Ireland. In order to ensure the realization of equal labor rights, Ireland has set up two institutions to handle individual complaints and carry out activities to promote equality, namely, the Office of the Director of Equality Investigation and the Equality Authority. The former has the right to investigate and make a binding ruling, and its discrimination compensation ruling can reach two years' total salary. The latter is actually responsible for affirmative action and drafting related bills.
(C) the definition of employment discrimination by domestic scholars
Due to the lack of research on employment discrimination, domestic scholars have different views on the meaning of employment discrimination. Generally speaking, the definition of employment discrimination by domestic scholars can be roughly divided into the following categories:
1. Restrict employment discrimination to employment process or employment opportunity discrimination in a narrow sense.
Some scholars pointed out that "employment discrimination is a violation of equal employment rights. The so-called equal employment right refers to the right that workers who have the ability to work and reach the legal age can choose employers in the labor market, so as to get equal opportunities to participate in social labor and will not be discriminated against because of nationality, race, sex, religious belief, age, color, nationality and personal physical quality. " Some scholars have given a similar definition, arguing that employment discrimination refers to the phenomenon that "job seekers with similar conditions cannot enjoy equal employment opportunities with others due to some factors unrelated to their personal abilities, thus their equal employment rights are violated."
2. Define discrimination by enumerating its manifestations.
Some scholars have listed the common understandings of employment discrimination and pointed out that discrimination in employment contains three different meanings: one is psychological aversion, which depends on the personal preference of recruiters; Second, unfair treatment, that is, holding candidates in different ways; The third is unfair treatment, which mainly means that workers are in an unequal position when entering the market in terms of employment rights, social status, wages and benefits.
3. Define according to the type of discrimination.
According to different types of discrimination, such as gender or age, some scholars define employment discrimination as follows: "Employment discrimination is a complex social and economic process, which is rooted in social customs and strengthened by the system of depriving the disadvantaged groups of better education and job opportunities. Mainly refers to the unequal treatment given because of the differences of race, gender, age, region and education. According to the different reasons for this inequality, it can be divided into absolute inequality and relative inequality. "
(D) domestic scholars' evaluation of the definition
1, narrow definition
To sum up, the above definitions have two similarities. First of all, the definitions are all based on Article 3 "Workers enjoy equal employment rights ……" and Article 12 "Workers are not discriminated against because of their nationality, race, sex and religious belief" of China's Labor Law, and the discrimination in the Labor Law is limited to the violation of equal employment opportunities, so the definition of employment discrimination is limited to the discrimination in the employment process. Secondly, the definition holds that employment discrimination is a violation of the right to equality.
We believe that although the above definition basically captures the core that discrimination is essentially an infringement of the right to equality, it is limited by the existing labor law and excessively limits the meaning of employment discrimination. According to the provisions of China's labor law, the right to equal employment refers to the equal right of workers to obtain employment opportunities regardless of nationality, race, sex and religious belief. In other words, the right to employment in China's labor law refers to the right to employment opportunities. The right to equal employment opportunities includes two aspects: one is the equality of employment qualifications, and the other is the equality of the measurement scale of employment ability. However, the right of equal employment opportunity is only one of the direct manifestations of labor rights and the premise of realizing other labor rights. The connotation of labor rights goes far beyond this, including but not limited to other rights stipulated in Article 3 of the Labor Law. Although China's "Labor Law" only explicitly declares "employment equality" in the provisions, and clearly lists the types of discrimination in employment opportunities in the second chapter "Promoting employment", as mentioned above, all specific rights under abstract labor rights should be equally guaranteed, which is the proper meaning of the right to equality. Therefore, we believe that discrimination should not be limited to discrimination in employment opportunities, but should cover all specific labor rights.
Some scholars are aware of the broad meaning of "employment discrimination". When defining this concept, they pointed out: "The so-called employment discrimination refers to the phenomenon that job seekers with the same or similar conditions cannot enjoy equal employment opportunities and equal treatment of employment security such as salary, distribution, promotion and training opportunities when they are employed, thus damaging their equal employment opportunities." Although the scholar mistakenly returned equal employment to equal employment opportunity at the end of the definition, it can be seen from its definition that the "employment discrimination" referred to by the scholar is not limited to the violation of "equal employment opportunity" in the labor law, but also includes the unequal treatment of employment security.
Based on the above, we think it is necessary to unify the meaning of "employment discrimination" on the basis of distinguishing the right to employment and the right to employment opportunity, so as to avoid improper restrictions or narrow misunderstandings on employment discrimination.
2. Ignore the existence of indirect discrimination
In the definition of domestic scholars, the perspective is almost limited to "direct" discrimination in employment. We believe that employment discrimination cannot be limited to direct unequal treatment. In fact, formal equality in the process of labor sometimes leads to actual or substantive inequality. If the employer's recruitment tests is not suitable, it may exclude a certain group from employment. For example, in the famous case of Griggs v. Duke Electric Power Company in the United States, the employer asked for a high degree, which is not required by the nature of work, while blacks in the United States often have a low degree, so this requirement for a high degree greatly reduced the employment rate of blacks and was considered by the court to constitute discrimination. The so-called indirect discrimination refers to this superficial form of equal treatment of different groups of people. This phenomenon is quite common in China, but it is often ignored or even commonplace. For example, employers catch up with the trend and adopt written recruitment, but the examination content is unscientific; There is also the use of the same physical fitness test standards for people of different ages and so on. Generally speaking, if someone puts forward a condition or requirement? %C