论雇主实施就业歧视的赔偿责任

On the Compensation for Employment Discrimination

雇主实施就业歧视损害了劳动者权益,应当承担赔偿责任,而受害人就此提起仲裁或诉讼,须表明两个层次的请求权基础。受害人请求赔偿的范围应包括实际经济损失、机会利益损失和精神损害的抚慰金,其中,实际经济损失和机会利益损失都属于财产损失。实际经济损失主要包括缔约费用的支出、薪酬歧视所造成的收入减少以及权利救济的成本等,这类损失应按实际计算的损失额进行赔偿。由于机会利益损失的不确定性极为明显,可参照英国的做法,依据不同情形对其采取灵活的赔偿策略。至于受害人的精神抚慰金赔偿,应适用我国侵权法的有关规定,并由法官酌定具体数额。当然,为平衡劳资利益,有必要适当限制雇主的赔偿责任。

Employers should bear the liability to pay the compensation for employment discrimination. Victims initiating a civil action against employers must indicate two kinds of claim basis. The reasonable compensation scope includes property loss, the loss of opportunity benefits, and injured feelings. Among them, tangible property loss and the loss of opportunity benefits are belong to property loss. Tangible property loss includes contracting costs, wage discrimination and the costs of right remedy, etc. Compensation for tangible property loss can be calculated generally. However, the loss of opportunity benefits is obviously uncertain, and the remedy for it should adopt a more flexible strategy according to different situations from learning the practice of the UK. As for compensation for injured feelings, the relevant provisions of tort law should be applied to it, and all factors are considered to get the amount of compensation. Of course, for balancing the interests of employers and employees, restricting appropriately employer＇s liability is necessary.