Legal Discussion On Employment Discrimination

Employment discrimination is essentially a violation of the people's equal opportunity rights in relation to employment. To curb employment discrimination and ensure equal employment protection is directly related to the effective realization of the workers basic human rights; it is fundamental for the purpose of promoting social justice and constituting a harmonious society. However, due to the continuous neglect of protection of the people's individual rights and the imperfection of the legal system in connection with anti-employment discrimination, employment discrimination in China is very serious and widespread and it consequently constitutes a serious danger toward social stability and harmony. In this thesis, using the method of comparative study and drawing advanced experience of the relevant countries and territories, the author aims to explore the concept of employment discrimination academically, and to explore the improvement of the legislation system of anti-employment discrimination in China practically, so that the thesis may offer an effective thinking in achieving a relatively effective solution to employment discrimination.Aside from to the introduction, this paper is divided into four chapters. The specific contents of the chapters are as followed:ChapterⅠ, Employment and Employment Discrimination, mainly focuses on the basic issues of the anti-employment discrimination—definition and identification of employment discrimination. Starting from the concept of the equality, this section analyzes the legal basis of anti-employment discrimination and the relation between equality and discrimination. On the basis of analysis of definition of discrimination, section two focuses on the inherent meaning and concept of employment discrimination. This thesis is in the view that employment discrimination is in the context of employment, granting differential treatment to a certain group of people on certain basis without reasonable justifications. Further, according to the manifestation of employment discrimination, this thesis points out the basis and analysis method of the two types of discrimination. However, not all differential treatment is discrimination, rather, reasonable differential treatment is allowable under the law. Thus, section three analyzes the standards of non-discrimination and lists five reasons as acceptable exceptions to discrimination. Section three discusses the issue of burden of proof when the court tries on employment discrimination cases and concludes on the method of transferred common burden of proof. In order to fully understand the real meaning of employment discrimination, the last section puts forwards a brief introduction of positive action and reverse discrimination.ChapterⅡ, Study on Extraterritorial Employment Discrimination Law, delivers a comparison study between the foreign anti-employment discrimination laws and that of our country. The anti-employment discrimination law in the United States and European countries are relatively more mature and worth our learning and reference. Aiming at absorbing the positive points of different legal systems and setting forth the United States, the Netherlands, and the Hong Kong Special Administrative Region as the comparison objects, this thesis presents a comprehensive and in-depth introduction and comparison study from the perspective of the legislation system of anti-employment discrimination, law enforcement agencies, remedy procedures and standards of anti-employment discrimination and summarizes from the above thinking and contents with regard to improvement of China's anti-employment discrimination legislation.ChapterⅢ, Status of China's Anti-employment Discrimination and the Relevant Legal Regime, introduces the current status of our country's anti-employment discrimination and review of the relevant legal regime. Generally speaking, employment discrimination in China is widespread and the forms vary; direct discrimination and institutional discrimination are quite popular. The very important reason for this phenomenon is that though currently our country has anti-employment discrimination laws on different levels of effectiveness, theses laws are difficult to well play their roles due to certain existing shortcomings such as too scattered legislation, too low legal effect, non-existence of enforcement agencies for anti-employment discrimination, and lack of judicial remedies of employment discrimination, etc.ChapterⅣ, Perfection of China's Legislation on Anti-employment Discrimination, is the focus of this thesis. Through the in-depth comparison of the anti-employment discrimination laws and experience of certain countries and territories, and based on our country's current legislation system and practice, this thesis makes detailed comments and recommendations in relation to the building and perfecting our country's anti-employment discrimination legal system. It is concluded that there is a need for China to adopt an Anti-employment Discrimination Law; further, this thesis conducts feasibility studies on the applicable scope the potential Anti-Employment Discrimination Law, standards toward discrimination, set-up of the authorized agencies, remedy methods, etc. and proposes effective thinking for solutions.