On The Arbitration Remedy Of Employment Discrimination In China

With the continuous expansion of China’s total economic volume,although the concept of equal employment has penetrated into various industries,the phenomenon of employment discrimination is still widespread in individual enterprises and institutions,especially in privately held enterprises.To a certain extent,this infringes on the equal employment right enjoyed by citizens.In addition,the existence of this phenomenon not only hinders the realization of the value of citizens’ labor rights,but also is not conducive to the formation of a social equal employment concept system.Nowadays,with the development of society,the forms of employment discrimination are becoming more and more diverse.Through a careful study of the employment situation in China at this stage,it is found that the discrimination suffered by citizens in applying for relevant positions is mainly reflected in five aspects: age,sex,education,work experience and health or not.Based on the present situation of employment discrimination in our country,this paper makes an appropriate reference to the settlement mechanism of foreign employment disputes,and tries to regard arbitration mechanism as one of the procedures for resolving this kind of disputes.In the process of personnel recruitment,because the recruiter has the absolute right to choose,the power between the recruiter and the applicant is extremely unbalanced,and the disputes between the two sides can not be solved by the relevant provisions of the Labor contract Law.Therefore,the simple use of arbitration procedures can not fundamentally resolve the employment discrimination dispute between the two sides.In order to ensure the equality of the parties in the litigation,this paper suggests that the applicant’s power in the arbitration procedure should be enhanced by introducing the appellate body.Essentially,we can classify employment discrimination disputes into quasi-labor disputes,thus providing the victim with private rights relief based on labor law and public rights relief represented by appeal agencies,greatly improving the protection of the legitimate rights and interests of the vulnerable party.However,the public power itself has a strong force.Therefore,we must not rely excessively on this kind of relief.We must control the exercise of public power within a reasonable range to prevent the emergence of new imbalances.At this stage,the legislature of our country has limited the boundary of labor disputes to those disputes that occur when labor contracts are signed or there is a substantial labor relationship between the two sides.Disputes that arise without a labor contract cannot be remedied in accordance with the provisions of the Labour Code.As for the employment discrimination dispute,because it mainly occurs in the employment stage,the two parties in the dispute have not really formed the labor relations stipulated in the Labor Law.However,in order to strengthen the protection of the legal rights and interests of the weak,we should extend the scope of protection of employment discrimination,for example,by prohibiting and enumerating the relief extension of employment discrimination.In the existing arbitration system,we all regard arbitration agreement as the basis for the initiation of arbitration proceedings,and the emergence of arbitration agreement is the result of the agreement between the parties.Normally,the employer does not sign an arbitration agreement with the applicant,so the initiation of an arbitration agreement is out of the question.In the face of such a situation,if we can give full play to the positive role of the appellate body,if the applicant comes forward to negotiate with the applicant through consultation,if the applicant knows that there is discrimination in employment and is unwilling to bear certain consequences,The appellate institution may apply directly to the arbitration institution for arbitration.In addition,in order to ensure that both parties to the arbitration can express their views during the proceedings and improve the effectiveness of the arbitral award,we can allow a third party to appear in court in the arbitration section.It can not only ensure the smooth settlement of employment discrimination dispute,but also improve the innovation of arbitration procedure.As for the introduction of a third party mechanism in arbitration proceedings,scholars from various countries have different opinions about it.Some countries have a positive attitude towards it,others firmly oppose it,and others have a neutral attitude.On the basis of studying these viewpoints,this paper innovatively puts forward the practical rules of arbitration third party on the basis of fully combining the current situation of our country.As far as the combined arbitration mechanism is concerned,it is closely related to the practical rules of the third party of arbitration,but there is also a fundamental difference between them,that is,whether the initiation of the two systems really comes from the will of the parties.At this stage,voluntary merger arbitration is a practice accepted by most countries,because voluntary merger is essentially a new arbitration agreement between the two parties to the dispute,while involuntary merger is a compulsory merger through public power.Its representative country is the Netherlands,and the attitude of the United States towards involuntary merger has changed from a firm opposition at the beginning to a partial recognition today.Based on the real needs of our country,this paper also sums up some combined arbitration items suitable for the specific conditions of our country by drawing lessons from the practices of other countries.Finally,this paper analyzes the current employment discrimination arbitration relief system in China,demonstrates the possibility of employment discrimination arbitration relief in our country,and makes corresponding suggestions from the substantive and procedural aspects;at the same time,this paper briefly introduces the status quo of judicial confirmation of arbitration system in our country,and puts forward some perfect suggestions on the problems existing in the practice of not enforcing and revoking arbitration awards in order to further improve the effectiveness of arbitration awards.