Criteria For The Determination Of Labor Employment Discrimination

Equality is the basic right given to citizens by the Constitution,and it has gradually become the consensus of the whole society.Prohibition of employment discrimination is the concrete embodiment of the principle of equality in the social field and the inevitable requirement of realizing social fairness and justice and safeguarding human rights.Workers should get equal employment opportunities when they are employed,and they should be treated equally after they have worked hard.However,employment discrimination stands on the opposite side of equality,which damages and deprives workers of equal employment rights.In view of this,in recent years,China has actively promoted the improvement of anti-discriminatory employment legislation,and achieved certain results.However,due to the relatively late start in the field of anti-employment discrimination in China,a set of relatively clear standards for the identification of employment discrimination has not yet been established,which leads to difficulties in the judicial application of relevant laws and regulations.In addition,with the emergence and development of new social forms,new reasons for discrimination emerge one after another,and the lag of legal provisions makes many workers excluded from legal protection after suffering from employment discrimination,and their rights and interests cannot be effectively safeguarded.However,western countries started earlier in the field of anti-employment discrimination,and the regulations are relatively complete,which can be used for reference.Therefore,through the analysis of the judicial status quo of employment discrimination at home and abroad and relevant laws and regulations,focusing on the recruitment process,we will gradually deepen and systematically explore and clarify the criteria for identifying employment discrimination in China.The first part sorts out the existing legal norms of employment discrimination identification standards of workers in China,and sums up two main problems in the identification standards of employment discrimination with judicial cases of employment discrimination: first,the lack of accurate definition of the concept of employment discrimination,the unsystematic identification basis and the narrow definition scope of discrimination causes;Secondly,in the face of the impact of epidemic situation and the increasing situation of employment discrimination under the background of the rapid development of big data algorithms,the applicability of existing employment discrimination identification standards is facing great challenges.The second part analyzes the criteria of employment discrimination from the legal perspective,and discusses the necessity of ensuring the realization of equal employment rights of workers from two aspects of formal equality and substantive equality.At the same time,it expounds the necessity of restricting the employer's employment autonomy from three angles: the legitimacy of the right restriction,the way of restriction and the exception of restriction.The third part draws lessons from the experience and practice of foreign employment discrimination identification,and seeks the similarities with China's anti-employment discrimination system.Subjectively,the criteria for identifying employers' discriminatory intentions are defined;objectively,the criteria for identifying employment discrimination under the same conditions are defined by selecting reference objects.