平等就业权救济的困境与出路——以社会法矫正私法为视角

Dilemma and Solution for Relief in the Right to Equal Employment——From the Perspective of Rectifying Private Law with Social Law

我国平等就业权的救济目前主要是私法救济,即劳动者寻求典型私法的人格权责任、侵权责任的直接救济,辅以特别私法的劳动合同责任的间接救济。然而,平等就业权的私法救济存在诸多困境,表现为就业歧视一般侵权化认定的误解、歧视性用工的规制漏洞、证明责任的失衡以及民事责任和私法自治的功能局限与异化。问题根源在于反就业歧视法的本质属性并非私法而是社会法。平等就业兼具公共利益与私人利益,应以社会公共利益为本位,坚持公平优先兼顾效率的价值取向。以社会法矫正私法为方向,完善平等就业权的救济机制是困境的出路,具体包括平等就业的特殊侵权责任制度、歧视性用工的劳动合同法规制机制、公私融合的法律责任以及实质公平的证明责任制度。

At present,the legal remedies in terms of the right to equal employment in China are mainly related to private law,that is,laborers seek direct legal remedies for personality rights liability and infringement liability according to typical private law,supplemented by indirect remedies for labor contract liability under special private law.However,there are many challenges in private law remedies for the right to equal employment,which are manifested in the misunderstanding of the general tort identification of employment discrimination,the loopholes in the regulations on discriminatory employment,the imbalance in the burden of proofing,and the limitation and alienation of the functions of civil liability and private law autonomy.The root of those problems lies in the fact that the nature of anti-employment discrimination law is not private law but social law.Equal employment involves both public and private interests,and it should be based on the public interest of society and adhere to the value orientation of prioritizing fairness while taking into account efficiency.Improving the legal relief mechanism for protecting the right to equal employment,with a focus on correcting private law with social law,is the solution to the dilemma.Specific measures include establishing the special tort liability system for equal employment,the legal mechanism against discriminatory labor contracts,the public-private integrated legal responsibility system,and an essentially fair system for the responsibility of adducing evidence.