On The Distribution Of The Burden Of Proof For The Employment Anti-Discrimination Laws

With the rapid economic and social development of our country, the employment discrimination in all walks of life is becoming more and more prominent. Faced with such unfairness as that, and in order to safeguard citizens’ lawful rights and interests and guarantee the rapid and stable development of the economy, the legal departments of our country have made greater efforts to study the laws for the employment discrimination, and then have promulgated one after another the Labor Law, the Law of the People’s Republic of China on the Protection of Rights and Interests of Women, the Law of the People’s Republic of China on the Protection of Disabled Persons and the Law of the People’s Republic of China on Promotion of Employment, which is a crucial step for the consummation of our legal system and the protection of the citizen’s lawful rights and interests. However, although remarkable achievements have been made in the employment discrimination legislation, the problem with the concrete distribution of the burden of proof has arisen. For example, the Article64of the Civil Procedure Law of the People’s Republic of China stipulates that "A party shall have the responsibility to provide evidence in support of its own propositions". Before resorting to the legal proceedings, the employees are in the disadvantaged position compared to the employers. If the burden of proof is distributed to the employees according to the stipulation, the employees have to face the outcome exacerbated by their inability to provide evidence in support of their own proposition, because it is easier for the employees in face of the direct discrimination to provide evidence, but when they meet with the indirect discrimination, due to their own limitations, it is difficult for them to provide effective evidence. The unfair distribution of the burden of proof leaves the disadvantaged employees in a difficult position to take legal action to safeguard their own legitimate rights and interests. In this case, the employees as the losing party would possibly choose other illegal channels to protect their rights and interests, which would affect the stability of the entire society. So the study on the distribution of the burden of proof in the employment discrimination is urgently needed to balance the burden of proof between the employees and the employers.Focused on the problems with the distribution of the burden of proof in the employment discrimination, the thesis has analyzed such basic definitions as employment, discrimination and the distribution of the burden of proof and, combining the studies on the distribution of the burden of proof in the employment discrimination in the legal system of the mainland China with those in the Anglo-American legal system, the thesis has also pointed out their strengths and weaknesses to expose the unreasonableness of the burden of proof in China and then has discussed the approach to balancing the distribution of the burden of proof from the perspective of laws. To put it in detail, firstly, the basic concept of employment discrimination has been analyzed and defined more accurately. Secondly, the author of the thesis has discussed the distribution of the burden of proof in the employment discrimination in the Anglo-American legal system and that in the legal system of the mainland China, and has analyzed their strengths and weaknesses. At last, through analyzing the distribution of the burden of proof in the current employment discrimination legislation and learning from the experience of the foreign countries, the author has proposed some strategies on the basis of the previous research achievements to consummate and balance the burden of proof with intent to develop the economy and society in a rapid, harmonious and stable way. These strategies are put forward in two different ways. On the one hand, the successful experience of the foreign countries should be introduced and studied, and the feasible part of it should be put into practice. On the other hand, attention should be paid to the current stage of our social development and feasible laws should be formulated.