On Judicial Determination Of Employment Discrimination

In December 2018,the Supreme People's Court issued a new civil cause of action of "equal employment right dispute".Since then,the cases of involving equal employment rights have officially been included in the cause of disputes over personality rights.In the trial of cases of equal employment rights,the courts took employment discrimination as the object of examination,and determined whether there was violation of equal employment rights by observing whether employment discrimination existed.Therefore,the observation of equal employment right needs to be examined from the perspective of employment discrimination.However,in judicial practice,there are certain differences in the judicial identification standards for employment discrimination,and the academic community cannot discuss this issue uniformly,which leads to uneven court arguments and violations of workers 'equal rights to employment.Therefore,this article takes the empirical research method and normative analysis method as the research method,analyzes the basis and rules of the current court decisions,and examines the determination of employment discrimination from the perspective of basic rights,in order to further improve the protection of employment equality in practice.Taking the judgment document as the starting point,and using "employment discrimination" as the key word of the "court think" part,we searched out the data,including the scope,subject matter,and judgment basis of judicial discrimination in employment.At the same time,it concludes two standards of employment discrimination,one is mechanical judgment standard,the other is interpretation judgment standard.The part of the reasoning of the court of judgment documents enables us to extract the current standards of the courts in determining employment discrimination.These standards have legal basis,and there are also the judges' reflections on them in the trial of cases.However,this needs to be further reflected from a theoretical perspective.On the one hand,the court is vague in the scope of the main body,but it is a little absolute in the scope of the matters,and the recognition of the civil right of employment equality still in the concept of form;on the other hand,the court's recognition standard of employment discrimination is not perfect,which can not properly solve the conflict between employment equality and employment autonomy.To solve the problems existing in the court's determination of employment discrimination,first of all,we need to distinguish the basic rights and civil rights,and correctly understand the relationship between the equal rights as basic rights and theequal rights as civil rights.Secondly,it is necessary to grasp the theory of the fundamental rights' effect to the third person and understand the scope of application of the theory of direct effectiveness and indirect effectiveness.Finally,we need to introduce the value basis of basic rights and the theory of the third-party effectiveness of basic rights to balance the right to equality in employment and the right to autonomy in employment.To reconstruct the rules for the judicial determination of employment discrimination,it is necessary to solve the problems existing in the judgment according to the aforementioned principles.The determination of employment discrimination must first determine whether the employer is the subject of social public power or general private rights,and then determine the subject of judicial discrimination for employment discrimination,the extent of the scope of the matter,and the balance between employment autonomy and employment equality according to the nature of the employing unit,and finally judge whether there is employment discrimination according to the above requirements.In the adjudication,using the constitution as the basis for reasoning in civil cases is an effective way to solve the civil law norms that are not enough to deal with practical problems,and it is also the only way to integrate constitutional values into the case.In summary,to safeguard the equal employment rights of workers,it is necessary to construct rules to regulate the judicial recognition of employment discrimination.