反就业歧视的法治化探求——解释论与立法论的双重思量

The Pursuit of the Legalization of Anti-Discrimination in Employment——Considerations from the Perspectives of the Theory of Interpretation and the Theory of Legislation

目前,我国规制就业歧视的法治重任主要由《劳动法》和《就业促进法》予以担当。然而,《劳动法》显露出滞后性的缺陷:一是就业歧视争议法律属性混沌不清;二是举证责任配置规则语焉不详。因此,制定"反就业歧视法"实属必要也更合时宜:首先要拓宽法律调控视野,"劳动过程"要囊括求职阶段和职业阶段。其次,要明确就业歧视类型,设定就业歧视认定标准。最后,要厘定就业歧视争议法律属性、合理配置举证责任,就在于其在法律效果上力求兼顾劳动者的平等就业权和用人单位的用工自主权,找寻最优的契合点以均衡、调和劳资双方的冲突。

Today the Labor Law and the Employment Promotion Act take the main responsibility of promoting anti-discrimination. However, the Labor Law has its own defects: firstly, the legal attribute of employment discrimination disputesis not clear; secondly, the rule about the burden of proof allocation is vague. Therefore it is necessary and appropriate tolegislate on laws about anti-discrimination in employment. The process is: first of all, expanding legal regulation and mak-ing 'labor process' to include job and career; secondly, clarifying the types of employment discrimination and setting the standard of it; finally, determining the legal attribute of employment discrimination dispute and deploying burdens of proof reasonably, striving to balance the equal employment rights of labor and the autonomy of the working untis to choose whits and employ persons, and finding the optimal point to balance and harmonize the conflict between both abor and capital.