On Equal Employment Rights

In the treaty of U.N. human rights and the basic pact of International labor Organization, equal right and no-discrimination are the two core principles of them. Equal right is the law spirit carried out by International labor standard, as well as the right pivot of anti-employment. Taking up an occupation is the base of people s livelihood and the policy for a country s stability, obtaining an employment equally is such an important content of modern society's equal value, as well as a fundamental approach of ensuring hominine essential rights. However, inequality in employment is the most outstanding manifestation of social inequality. Negative influence and devastation resulted from inequality is widespread, far more severe beyond our imagination. In the transition of our society, there is an extensive common sense that the whole labors should share the fruits brought from reformation as the harmonious socialist society be constructed gradually, and our people can obtain a job equally is essential. Just in this sense, the equal rights of employment is not a simple rights declaration but a positive rights proposition as well as labors' pervasive interests appeal, as it has a plain civilian frame of mind and is related to democratization , diversification , equal opportunity of occupation and other significant problem, which provide with qualities of social justice and legal meanings .Meanwhile, positive study and legal protection toward the right is not only of implication, but should also becomes the respect of theoretic reasoning and institution designing in new period.Central task of this paper is to build a right system of equal employment which is characterized by perfect system, mature institution, advanced operation and powerful security. Research path of this thesis starts with right itself while is centralized in it. Main clue of the paper is formal as well as substantial right and attaches importance to the positive study and system creation. It's aimed at eliminating the obstacle of equal employment, regulating the equal rights to employment and the right of choosing the employees which are both the essential and main relations, dedicate to construct a system of equal right for employment, which accord with the situation of our country, so as to provide the most direct and effective legal support for the rights security. At the same time, this paper combines the research method about historic and current, international and domestic, theory and practice to study and exam the concept system, theory system, content system, operation mechanism, security mechanism and other essential and significant problems systematically.The structure of this thesis is divided into six parts. For the first part, it includes retrospect and reflection--the status and the main issues of equal employment rights in China. The second part is the interpretation of the equal employment rights. The third part is the theoretical foundation of the equal employment rights. The forth part is the content system of the equal right to employment. The fifth part is the operation mechanism of the equal right to employment in China --unifying the human resources market. The sixth is the security system of the equal right to employment in China.Chapter 1: Retrospect and reflection: the status and the main issues of the equal right to employment in China.In this part, on the one hand, I have coordinated, analyzed and examined systematically about the international experiences of the equal rights for employment. And at the same time, I made a brief evaluation about them. What is worth to mention is that the practice in the Western countries of the equal rights for employment tells us a truth. Equal employment right is a gathered right with strong syntheses, and the right is an overall framework, needing extensive participation and collective action. And apart from the critical strength of the rule by law, political consciousness and social consensus will also be essential. At the same time, under the background of economic globalization, we must change the traditional concept and employment policy and take the equal employment as a key measure to the employment promotion and the unemployment reduction. When we abandon the equal employment, not only the problem of unemployment can not be resolved fundamentally, but the problems caused by unequal employment would accumulate and reach to the serious extent which can destroy the basic value system of the society; On the other hand, in this part, we make a coordination systematically about the policy legislation and the research status of the equal right to employment in China. And at the same time, we also give special attention about deep-seated problems about the equal right to employment in our country, and emphasize in particular that the strategy toward all sorts of employment problems in our country are merely passively, have a systematic defection , and don't stand on China's own feet. Fundamentally speaking, the biggest problem of China's employment inequality lies in actual reduction of the workers' equal right to employment and the arbitrary deprivation and violation of the equal employment rights by the autonomous employment of the enterprises.On the base of comparative study about the equal rights to employment of Chinese and western modes, firstly, the last part of this paper point out that equal rights for employment is an important responsibility statement in the whole world with different meaning domains. Absolutely, the rights are not an abstract or balanced question but a concrete question close related to each country and the future. Equal rights for employment have special support in culture, theory and system in western countries. Secondly, the study about the equal right to employment in our country should not just present the international legislation and judiciary practice, merely show your opinion on the internationalization, or accept the western experience without any consideration. Actually, the internationalization of the equal rights for employment is not a newly phenomenon, but a newly angle of view. Therefore, in order to realize the rights in China, we should combine our state conditions to understand, to locate, to practice the rights in our country. Meanwhile, every theoretic system should extend itself by some central concepts. In the first place, we must rely on accurate understanding and full holding toward the right to build the rights system. Consequently, rebuilding our concept system about equal rights for employment becomes the most fundamental theoretic premise to construct the rights system and crack the unequal employment problem in our country. Chapter 2: the interpretation of the equal right to employment: the equal right to employment in social law perspective.As pointed out by the first chapter, the equal right to employment is not only a world discourse but also a specific question with different "means field". Therefore, choosing a suitable "theoretical field " to reconstruct the concept system of the equal right to employment should become a basic theory premise to construct the security system in China. The purpose of this chapter is to interpret and construct the concept system of the equal right to employment with Chinese characteristics in social law perspective. The view points that "Ternary legal structure", which adopts the classification of public,private and social law ,and labor law belonging to social law, not only in the West have been widely recognized, but also in China have become popular in the labor-law domain. Therefore, the concept of social law should be the main theoretical background and the "theoretical field" in our inspecting the equal right to employment. At the same time, only the equal right to employment being in the social law perspective can be its most fully understood, and the operation of the right system can be released to maximization. During the interpretation and construction of the concept system of the equal right to employment ,this chapter not only coordinate and analyze the basic issues of social law ,such as its origin,development, the concept,the nature and its ranks, but also particularly expounds the comprehensive and far-reaching impact which the social law give birth to the equal right to employment, through its special legal standard,its concept of rights and obligations, legal principles as well as independent rank. the equal right to employment find its new notes in social law perspective. On the basis of discussing the basic areas of the social law, this chapter also has done a special explanation about some basic and important issues, such as the equality and equal rights having been on the debate. Of course, the central issue of this chapter to address is the construction of the concept system of the equal right to employment. There are the following critical issues: the concept of the equal right to employment; the attribute of it; the relationship between the equal rights for employment and the right to choose their own jobs; the relationship between the equal rights for employment and the right of anti-discrimination in employment; the relationship between the equal rights for employment and the right of choosing the employees. These most basic, core and crux issues are not only having been on debate for a long time, but also become the pillars of the problem during the construction of China's concept system of the equal rights for employment.This chapter concludes that: on the basis of a comprehensive interpretation of the concept system of the equal rights for employment, we can not fully open the mystery of its system. Therefore, continue to explore its internal content system is an inescapable and important issue. First of all, I should provide a theoretical permit for establishing the content system of the equal rights for employment, and examine the appropriateness and legitimacy of the content system in legal collocation. Therefore, on the basis of a comprehensive interpretation of the concept of the equal rights for employment, continue to explore the theoretical foundation of the content system of the right has become a major problem in practical sense.Chapter 3: the theoretical foundation of the equal rights to employment.At the end of the second chapter, we have come to realize that continuing to explore the internal content system of equal employment rights is an unavoidable important issue for further revealing China's system of the equal rights for employment. First of all, I should provide a theoretical permit for establishing the content system of the equal rights for employment and seek a consensus rather than a utilitarian proof. This article holds that, with the social law perspective, its unique legal standard and value bearer help to find the most appropriate "means field" for establishing the content system of the equal rights for employment. So, the content system of the right will have a clear and specific meaning under social law perspective.The central argument of this chapter is that the core theoretical cornerstone of the equal rights for employment is social law and social standard embraced by it. Demonstration logic of this chapter is that exploring the two dimensions of the equal rights for employment from the macro level on the basis of social interest as the cornerstone of macroeconomic theory of the right; that depicting the equal employment right's three dimensions from the middle level on the premise of social right, the core right of the social law ,as the cornerstone of middle-economic theory of the right; that interpreting the basic provisions of the equal employment rights from the micro level on the premise of right to life ,social law's basic right, as the cornerstone of microeconomic theory of the right. In short, that the legal foundation of social law, the core rights and basic rights are as the theoretical foundation of the equal rights for employment is not only appropriate and legitimate, but also can provide the content of the right an access to most fully launch.Chapter 4: the content system of the equal right to employment in China.What kind of the content systems of the equal rights for employment to be established is not only a difficult issue in the construction of the system, but also the substance in this paper to construct the system of equal employment right. With the establishment of the concept system of the equal rights for employment and the theoretical cornerstone of it, the content system of the right in social law perspective has access to a solid support of the concept system and theoretical support, the construction no longer so difficult, and has shown the trend being ready to.The objectives of this chapter are that establishing the content system of the equal rights for employment according to China's national conditions on the basis of considering over the major issues the equal employment right facing to in China, the special operations the right carrying, the system target the right pursuing, and so on. On the whole, China's equal employment right's content system poses two levels: first, the formal right to equal employment, and second, the substantial right to equal employment. The first level of the content system of the equal rights for employment is the formal equal employment right. The so-called formal right means the main workers have the equal employment rights in law. The formal right of equal employment includes the following basic contents: the right access to or withdraw from employment both equal; labors' employment right given by law are equal; opportunities for labors' employment are equal; the competition rules used by labors in the labor market are equal. The justice and fundamental value of the formal equal employment right is to ensure that all labors have an equal starting point, which is the concentrated expression of principles of human rights, equality and freedoms in the field of employment. The second level of the content system of the right of equal employment is substantial equal employment right. The so-called substantial equal employment right means that the main labors lawfully have the right to obtain employment help from the government and to achieve the real equal employment rights, without reference to labors' social, economic, cultural and other differences but considering the objective need required by the value operation of the equal employment right. The substantial equal employment right includes the following basic elements: the provision of "decent work"; anti-discrimination in employment; promoting vocational training; and strengthening social security. The justice and fundamental value of the substantial equal employment right is to ensure that labors have equal employment rights in the result through providing tilting protections to the vulnerable groups in the society, on the premise of making up for the insufficiency of the formal equal employment rights. The substantial equal right of employment is not only the fundamental demand required by social interests in the field of employment ,but also the amendment and promotion of the freedom right made by social rights in the field of employment, but even more is the value needed by the survival right in the field of employment. If the formal equal employment right provides an equal opportunity to labors at starting point, then, the substantial equal employment right provides labors for equal employment protection ultimately in the results. Therefore, in the vision of social law, the formal right of equal employment is equal to the basic requirement of the equal employment right, and the substantial equal employment right is its ultimate goal. In short, China's equal employment right's content system should be the perfect combination of the formal and the substantial rights of equal employment and the two eventually unify on the ground of the interests of the community in the social law standard.Chapter 5: the operation mechanism of equal right to employment in our country ----unification the human resources marketAny theoretical construction and system creation at all require fully examination in the social practice. Particularly in the transition of our society, difficulties in dealing with many significant social problems are that how to carry out and affect the optimum approach effectively, rather than the substance or approach is unavailable. Where systematic constructions on such significant problems have been made within the perspective of social laws, as system of concept, cornerstone of theory, and system of content of equal right to employment, the task followed is how to make it work in practice and put into effect, as is equal right to employment, the huge and complicated system. The later is the crux of the security of the equal right to employment. Meanwhile the field and factors which the equal rights of employment involving in are of extreme abroad and complication, we cannot get access to a better mechanism and approach apart from the market-oriented equal employment in the current context in China. Therefore only in the human resources market can make the equal right to employment get fully development, as it contains vast and complicated contents of right. Where the operation mechanism of equal right of employment is market-oriented, the ultimate object of our reform will become to establish a united human resources market for our country.The content below could show the train of thoughts and main viewpoints of this chapter. In the first place, it has been made clear that the definition and the features of labor market, including such other fundamental problems. Furthermore, certain complicated problems regarding to equal right to employment have been constructed specially, just as governmental role, enterprise's social responsibility and the like. In the next place, an arrangement and analysis over the practice of labor market in China and foreign countries have been made under the comparative law, and underlying the main problems existing in our labor market. In the last place, the core task in this chapter is to reconstruct the united market of human resources in our country. However the pattern we should follow to establish the united market of human resources is the crucial part, by which the inequality in employment could be solved. After construing certain fundamental problems such as the object, connotation and nature of the reconstruction of our country's united market of human resources in sequence, furthermore, this part put forward the integral structure of the reconstruction of our country's united market of human resources, namely the six "unifications": the unification of legal system and institutions of the human resources market; the unification of scope of the human resources market ;the unification of administrative system of the human resources market; the unification of employ institution of the human resources market; the unification of service system of the human resources market; the unification of social security institution of the human resources market. It is should said that, the structure of our country's united human resources market designed in this text is not "Weakness lends wings to rumors", otherwise it is based on reality and appealed necessity. Meanwhile the above six "unifications" are of mutual independence, and mutual influence, mutual promotion as well; they provide relative intact institutional support for the construction of our country's united human resources market from various angles and levels, and also provide viselike secure like the flat form for the fully carrying out and effective operation of each capability under equal right of employment. It is pointed out that in the context of a economical and social transformed country, influenced and restricted by all kinds of complicated factors, as it should be, the reconstruction of our country's united human resources market is a great and extremely difficult historical task, which need to make contact joint with "heritage" of the Planned Economy, and to face the new situations, new problems, new requires directly else, which also have the difficulty of seeking arguments and the difficulty of justifying arguments. Meanwhile the operation and carrying out of the united human resources market are much more complicated and difficult than imagined, simply because that the reconstruction of our country's united human resources market ranged over the four corners. In a word, in the construction of the united labor market, where we cannot concentrate efforts on the control of the human resources market, on the establishment of the intermediary services system, on the cultivation of the capability of employment, it is not possible to solve the employment problem in China. While the GDP rapid expansion, China becomes a "stay awake" country facing the coming pressure of employment. Now it is clear that economic growth has been to a great extent, however in such circumstance, lots of employment problems do exist, which indeed calls for us to consider and solve them from an even broader, deeper level. All these significant problems make up the new project for the reformers and designers of the united human resources market.Chapter 6: the security system of equal right of employment in our countryIt is could be said that without security equal right of employment is all just pie in the sky, according to the proverb about "Remedy Precedes Rights". Where from the angle of jurisprudence in study of the equal right to employment, it may be the most important problem concerned that to protect and remedy equal right of employment in accordance with the law. In light of the institutional system of equal right of employment established in this text, just as we planed, the new institutional system of equal right of employment will play a key role to promote our country's employment and to push forward the construction of harmonious society. Meanwhile such role of equal right of employment is dependent on an at all effective institution in right security. Within all kinds of the optional proposals, it will not be questioned that the protection of equal right to employment in accordance with the law is the most direct, most reliable and most effective institutional option. Especially in the context of our country's economical and social transformed progress, of being intensified pressure of employment however not well-regulated equal employment, of the limitlessly stretched free to employ however the shortage of equal right to employment, it has been the particularly urgent problem to underline the legal security of equal right to employment. It must be firmly convinced in our mind that we can no longer be intoxicated with the economical grow and superficial booming along with the great amount of cheap labor force currently. If self-complacence, as such, we will neglect the legal institutional construction, other than establish the legal institution in favor of the security of equal right to employment. Therefore the protection of equal right to employment in accordance with the law is a realistic proposition about the respect and secure of the basic human rights, furthermore is the final object of this text in the construction of the institutional system of equal right to employment.At the same time, the core task of guarantee the equal right to employment is to construct the equal employment right system of legal guarantee with Chinese characteristics from the legislative, enforceable and judicatory aspects。In terms of legislation, this part not only elaborate the value positioning and legislative mode of our country's legislative guarantee of the equal right to employment, but also discuss how to promote our country's legislative construction of guarantee the equal right to employment from three aspects of Constitution,Labor Law and Employment Promotion Law. In it, I focus on discussing the extreme importance of establishing our country's legal system of anti-discrimination in employment in the levels of Labor Law and Employment Promotion Law, and also make positive response to some fundamental problems of the legal system of anti-discrimination in employment .While, in order to deepen the meaning of virtual right of equal employment in Social Law perspective, this part make specialized discussion of special protection to female laborers in opposing employment discrimination。In terms of enforcing the law, in accordance with the major problems which exist in our country's administrative enforcement of law about guarantee the equal right to employment, this part discusses some important problems exist in the guarantee of enforcing law of the equal right to employment respectively, such as legislative construction,organizational construction,working system's construction,the focus of enforcing law,the supervision of enforcing law and so on. In terms of justice, on the basis of pointing out the inadequate of our country's judicatory guarantee of equal right to employment, this part elaborate respectively the system construction of judicatory guarantee of our country's equal right to employment from aspects such as Constitution,Labor Law,some other related Law,litigation mechanism and so on. Among them ,this part makes some relevant discussion to the topics of general interest and difficulty specially, such as the constitution's judicatory turns in judicatory guarantee of equal right to employment,the system reform of processing labor disputes,the connection and cooperation of related litigation mechanism in the judicatory guarantee of equal right to employment,the system construction of law responsibility in the judicatory guarantee of equal right to employment. This part point out finally that guarantee the equal right to employment by law, is not only the consensus of the world, but also a very important topic which must be solved in our country's guarantee of equal right to employment. However, there is no wonder drug which can eliminate the inveterate and incorrigible traditional standpoints and prejudice in the employment's discrimination. It is really a huge system engineering of constructing the legal system which can guarantee the equal right to employment, and attending to involve every part of each aspect is obvious too hard for this thesis to reach. Backing one step to say, even if according to the legal system which this thesis construct carefully, the guarantee of equal right to employment could never bring the effect like "Instant coffee". Behind law and policy, traditional idea of unequal employment is really the last bastion which prevents the equal right to employment from developing forward. Therefore, this thesis's study of equal right to employment which sets off from legal system's perspective is only a beginning. In order to guarantee the equal right to employment effectively, it must also rely on carrying out some related measures which form a complete system, nurturing and carrying forward the culture of equal employment, thus propel and promote the deep and broad development of our country's guarantee of equal right to employment and "national movement" against employment discrimination completely. This is exactly the assiduous pursuit of my thesis.