Explorations Into The Legislation Of Anti-Employment Discrimination In China

Employment discrimination (ED hereafter) is the challenge of the right toequal employment. Employment discrimination refers to the act of making adistinction and treating individuals differently on the basis of race, gender, age,physical constitution, religious and ethnic backgrounds and othercharacteristics pertaining to the individuals beyond their will to change so thatthe individuals concerned, while having obtained the same level of educationand training, exhibited the same level of competence and capacities anddemonstrated the same level of productivity, are prejudiced, compared toothers, in their job application, employment, job positioning, careeradvancement, salary and welfare, and other well-being related with careerdevelopment. This dissertation is consisted of three parts.Chapter one provides an analytical introduction of some majorcontemporary ED theories, which, namely, include personal prejudice theory,statistically prejudice theory and non-competitive prejudice theory. Based onthe theories of neo-institutional economics, this part also proposes, through anin-depth examination of the reasons behind ED, that ED is unavoidable in themarket-oriented economy. But the dissertation maintains that ED cannot beprevented by the market rules, and it has to be intervened by legal procedures.Chapter two introduces three major aspects of the legislation of anti-EDlaws in the United States of America. Firstly, the legislation system concernedis composed of two main parts, namely, the general laws of anti-ED and thespecialized regulations addressing to the employment bodies, apart from caselaws. Secondly, this part accounts for the ED patterns registered in the USlaws, namely, race and color, gender, religion and faith, country of origin andnationality, age and the handicapped etc. Lastly, the dissertation alsointroduces the process system of anti-ED law in the US legal system. Equalemployment committee, the anti-ED execution body in the US, introduces twomajor theories about how to affirm ED: discriminative treatment anddiscriminative impact. Also introduced in this section are the remedies to theanti-ED laws in the US. Part II demonstrates that China can utilize some of themerits in the anti-ED laws and establish its own legal system to enforce ageneral anti-ED law. The dissertation proposes that China can establish aspecial legislative body and adopt a "general-specific-generalization"formatin its anti-ED lawmaking.Chapter three starts with an examination of the present situation of ED inChina, investigation of its major patterns and an analysis of its main causes.The major patterns of ED are concerned with gender, registered permanentdomicile, age and handicapped. These patterns exist on both market-level andinstitutional-level. Three major reasons for ED are: 1) the unbalanced structureof labor market, 2) the abuse of the recruitment autonomous power in theenterprise bodies, and 3) the conventional positioning of specific labor groups.This part proceeds with the exploration of the problems in the related legalregulations and the legal system in China. It demonstrates that our currentlegal system entails difficulties in enforcing the related legal regulations aboutanti-ED, that the system has no feasible framework under which to affirm EDand designates no exceptional clauses for ED, and that it prescribes noremedial procedures for ED. As a result, in the current legal system, the rightsof the laborers are subjected to violation.This dissertation puts forward the proposal for the establishment ofanti-Ed laws. In the perspective of entity system, it is necessary to adjust theobject of the anti-ED laws so that the laws are ensured to be applicable bothfor the labor contract between the employer and the in-service employee overthe entire course of the contract concerned and for the labor contract betweenthe employer and the potential employee in the job recruitment-applicationprocess. It is also necessary that there be a homologically well-defined term ofED. Our anti-ED laws should observe the principles of universality and...