人口政策转型期平等就业权的司法救济

Judicial Remedy of Equal Right to Employment in the Transitional Period of Population Policy

作为公民权利的重要组成部分,平等就业权因囿于宪法上的权利没有具象化,亦未能与私法上的歧视防治和救济体系相衔接,导致在侵犯平等就业权宪法诉讼机制暂付阙如的背景下,对劳动者平等就业权的保障仍流于立法倡导层面。国家人口政策放松后,尤其是“全面三孩”政策的落地,使育龄女性平等就业权保障面临更大的挑战。对于平等就业权的司法救济,最高人民法院新增了平等就业权纠纷案由,开启了真正意义上的平等就业权诉讼,其兼具的私法属性为纠纷进入民事诉讼程序并获得相应救济提供了法律依据。确定案由只是司法救济的开端,完善平等就业权的司法保障机制还需从界定平等就业权的法律概念及侵权类型、确立侵权行为的认定标准及抗辩事由、设立举证责任倒置规则、明确财产损害赔偿规则等方面展开深入研究。

The right to equal employment is a significant part of citizen rights.However,it traditionally exists as a constitutional right without judicial embodiment and the constitutional litigation mechanism is currently lacking.Meanwhile,it is still separated from the elimination of discrimination and relief mechanism in private law.This disconnection leads to the fact that the protection of the right to equal employment mainly is served as legislative advocacy rather than being applied in juridical practice.After implementing the new demographic reform,particularly the three-child policy,promoting the right to equal employment of women of reproductive ages are facing more challenges posed by gender discrimination in the labor market.Since the Supreme People’s Court issued equal employment cause of action,the construction of the remedy system of equal employment and the improvement of its civil proceedings have become two essential tasks.Considering the disadvantages of lacking standardization of judgment guidelines and identification criterion,improper rules of burden of proof,limited legal responsibilities,it is difficult to protect employees when their right to equal employment is infringed in reality.This study aims at improving the judicial remedy of the right to equal employment by focusing on clarifying the conception of the equal employment right,examining the types,criterion,and cause of defense of its infringement.Additionally,it provides an in-depth discussion of its reversing burden of proof,tries to set up the rules of economic compensation.