On The Judicial Relief Of Employment Discrimination

With the development of our market economy today, to further expand theautonomy of enterprises, in the personnel system is more independent, but graduallybeyond the limit of reasonable employment, employment discrimination problemsbreeding. Anti discrimination in employment has been of great urgency.The legalregulation is undoubtedly the most effective means.In2008promulgated the"Employment Promotion Law" clearly defined by the employment discrimination canbe resolved by way of litigation. But according to the survey, only10%of the winrate of China’s anti employment discrimination cases. The status of judicial practicehas aroused widespread discussion in theory circle and practice circle.In the absenceof constitutional judicature conditions,together with the relevant legal provisions ofentity and procedure is not perfect,scholars believe that the citizen of last barrier toseek to change the status is difficult to play a role.That makes the citizen of equalemployment power is just like a mirage, looks very beautiful, but it is difficult toachieve.In employment discrimination phenomenon in private enterprises, need to applyto the civil procedure rules, which is also the starting point of this paper. Inemployment discrimination cases in civil litigation, because our country has no clearleagal provisions about what is employment discrimination and just has a list of thespecified types of prohibition of discrimination. But discrimination phenomenon inpractice has been far beyond the scope of legal prohibition, for new types ofemployment discrimination, which acts to labor units constitute discrimination, whichdo not constitute, what criteria should be to become the court problem; the burden ofproof in civil procedure generally applicable:"who advocates, who prove", and ourcountry has no specific provisions on burden of proof in employment discriminationcases. The court how to allocate the burden of proof is more reasonable is worth exploring; in employment discrimination cases, victims are often put forward thespirit of damages by the discrimination in employment. Application and the amount ofspiritual damage compensation is quite different in court practice,which is not the lawshould have meaning. So I think that to solve the above three problems, which isbetter to judge for the court and in the face of employment discrimination cases willnot be at a loss what to do.This paper will through the case, combined with the relevant provisions of lawsof foreign and China, to the theoretical analysis, a more comprehensive discussion ofthe judicial application of the employment discrimination case, detailed standards inthee identification of employment discrimination in employment discriminationcases,suitable for the reversion of burden proof, relief of compensation for mentalinjury. That by thinking of research, obtains the solution for problem of judicialsuggestions, hoping to provide some reference in dealing with employmentdiscrimination case in the future, to promote China’s anti discrimination inemployment of the judicial process.