论反就业歧视法中的合理便利

Reasonable Accommodation in Anti-discrimination Employment Law and Its Enlightenment

合理便利是现代反歧视法的一项有效工具,它通过课以雇主积极义务督促其在雇佣实践各个环节对工作环境和方式进行改造和调整,抵消一些因家事负担、身心障碍或宗教教义带来特殊需求的群体面临的不利限制,以达到弥补个体劣势和推动社会融入的效果。除非将给雇主造成过度负担,否则雇主未履行合理便利义务则构成歧视。合理便利概念属于机会平等范畴,旨在为因自身需求而无法以通常方式完成工作的弱势群体营造一个包容性强、高度灵活且惠及全社会的工作环境。在司法实践中,合理便利义务证明过程与传统的间接歧视证明过程逐渐趋同,是否存在“可替代的较小歧视性手段”成为诉讼双方争议焦点。合理便利可以作为促进我国平等就业的辅助手段,发挥肯定性行动所不具有的优势。

The law of reasonable accommodation is a powerful tool in the anti-discrimination toolkit.It imposes accommodation obligation on employers and requires them to change the work environment or hiring process that provides a person who cannot perform job in a normal way with accommodation.Accommodation is caused by special needs which can be religious,physical,mental or emotional or employment related and is often mandated by law.Nevertheless,an employer is not required to make reasonable accommodation if it would impose an undue hardship on the employer.Reasonable accommodation is a concept of equal opportunity which asks the duty bearer to take positive actions to promote workplace flexibility,integration,and the whole social benefits.In the terms of burden of persuasion,judges adopt a unified method that the obligation to reasonable accommodation can be absorbed into bona fide qualification requirements.Seeking less discriminatory alternatives and applying the standard of undue hardship can benefit the defense system of employment discrimination.Compared to affirmative actions,a reasonable accommodation has its own advantage and can be a subsidiary method of equal employment law today in China.