摘要
The Labor Law of the People's Republic of China has established the defining mode involving three elements,which are the worker's characteristics,the employer's act and the relevance between the characteristics and the act,which primarily determines the regulatory object of the Law agianst Employment Discrimination.Furthermore,it sets up a framework of analyzing the two opposing rights between the employers autonomy in the recruitment and the workers right to equal employment,and laid the foundation of regulating the Law agianst Employment Discrimination.Moreover,it has built a parallel institutional structure of having both the old non-legal and new legal regulating means,and has preliminarily drawn the outline of regulatory means of the Law agianst Employment Discrimination law.In fact,the Labor Law is the origin of the Law agianst Employment Discrimination in contemporary China,and the norm generating logics it revealed and stipulated regarding the law against the employment discrimination has provided us the clue and basis for tracing and evaluating the development in this area.
《劳动法》初步确定了反就业歧视法的调控对象,并从劳动者特质、用人单位行为和特质与行为关联性三个要素定义就业歧视;初步奠定了反就业歧视法的调控依据,从用人单位用人自主权与劳动者平等就业权的两权对立出发,论证调控的正当性;初步厘定了反就业歧视法的调控手段,建立了旧的非法律调控手段与新的法律调控手段并存的制度结构。《劳动法》所揭示和规定的中国反就业歧视法的规范生成逻辑,既是这一领域的发展线索,又是其评价依据,因而是当代中国反就业歧视法的起源。
