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A Study On Equal Employment Right

Posted on:2010-10-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:H M HaoFull Text:PDF
GTID:1116360278474291Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Employment is the precondition for laborers to sustain their lives through labor. Right to employment's equal enjoyment and protection is the embodiment of equality principle in the field of employment. The complexion of the enjoyment and protection of right to employment affects not only the realization status of right to subsistence of applicants and employees but also the realization status of right to development, right of property, right to education, etc. Therefore, equal employment right is irreplaceably significant to every applicant and employee.The thesis has six chapters.Chapter One discusses the theoretical constitution of equal employment right, including its definition, constitution, right attribute, value and the relation between some other fundamental rights and it. The accurate definition of equal employment right is not only the basis of protecting itself but also the precondition of prohibition against employment discrimination. The realization of equal employment right is the equality in opportunities of access to employment and treatment of employment, including equal rights on opportunities of access to employment, employment treatment, public employment service and safeguard measures, etc. It is substantive equality based on equality of opportunity. The enjoyment and realization of equal employment right is an important way for employment subject to survive and to develop, to fill his life needs and social needs, to realize his value and to be recognized by society.Chapter Two introduces the ideological thoughts and its generation and evolution history of equal employment right. The most important ideological thoughts of equal employment right are thoughts of human rights and social welfare. The idea of equal employment initially appeared when capitalist economy rose, and its connotation is not invariable. Its form varies with different system and economic development levels.Chapter Three discusses the protection principles and circumscription principles of equal employment right. Principle of equal protection and principle of exceptional protection (namely the principle of reasonable disparate treatment) must be obeyed in the progress of protecting equal employment right, in order to realize substantive equality of employment right. The positive measures taken to implement the principle of exceptional protection include quota system, principle of automatic priority, principle of reasonable accommodation, etc. Same as other rights, equal employment right is not absolute, unconditional or unrestrained. It is circumscribed by reasonable occupation qualification, special requirements of the post, competitive industry prohibition and other reasonable reasons, though the circumscription should obey the principle of equality, the principle of proportionality and the principle of legality.Chapter Four expounds on the topic of employment discrimination. Employment discrimination is essentially unreasonable disparate treatment, and it encroaches on equal employment right. Making definite its real connotation, judgment criteria, types and causes of formation is propitious to the safeguard of equal employment right. Employment discrimination is dynamic and developing social phenomenon, and it has different manifestation in different time and different place. So new types of employment discrimination appear along with the society changes. Except for direct discrimination and indirect discrimination and discrimination based on irrelevant reasons, there are some other types of employment discrimination, such as reasonable accommodation discrimination, harassment discrimination, retaliation discrimination and so on.The stress of Chapter Five is the realization and protection of equal employment right. The realization of equal employment right is based on the consciousness of equal employment right's subject, and requires the duty subject (namely the country and the society) to perform its obligations. The crux of the enjoyment and realization of equal employment right is the game between equal employment right of applicants and employees and the self-determination right of employers, and applicants and employees are in an obviously disadvantageous position comparative with employers, so state's power (mainly legislative power and jurisdiction) must moderately interfere into this game, in order to balance the relation between applicants and employees and employers and safeguard equal employment right of applicants and employees. We may learn from the experience of UN, EU and USA in establishing the safeguarding system of equal employment right.The content in Chapter Six is about analyses and reformation of safeguarding system of equal employment right of our country. There are many provisions about equal employment in the legislation of our country, but the effect of prohibiting employment discrimination is not ideal. This is not only because there are many defects in the provisions of law of this aspect and there is no expert organization of prohibiting employment discrimination, but also because of these facts: employers will pay little for their employment discrimination actions, there is no effective relief ways, applicants and employees have a weak right consciousness, and the state have attach enough importance to equal employment right. Therefore, we should learn from advanced experience of other countries, improve legislative provisions about equal employment right and employment discrimination, set up expert organization for prohibiting employment discrimination and punish employment discrimination actions more severely.
Keywords/Search Tags:equality, applicants and employees, equal employment right, employment discrimination
PDF Full Text Request
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