Jurisprudence Analysis Of Institutional Discrimination In Employment In Our Country

With deepening of the reform and opening-up, the social structure ofChina has changed enormously. The subject of social economic benefits tendstowards the diversification, and enterprises have decision-making power inoperation and recruitment autonomy. The opportunity of employee'semployment is increasing too, and they have the rights of freedom of choice.But phenomenon of discrimination in employment also appears many types.The range of discrimination in employment is expanding constantly too, andit is influencing people's life day by day. Since the labor is still theessential means that people live on the earth, the rights of labor is also theessential rights that people can develop in an all-round way , so the researchabout the discrimination in employment, especially about the institutionaldiscrimination , must be closely related to protection of human rights.The reasons that institutional discrimination in employment exist arethat system takes different distribution attitudes to different colony whiledistributing social resources, some colonies among them are less comparedwith other people in assigning resources, thus makes this colony inunfavorable status in the competition for employment, and often repelledoutside the competition for employment. Discrimination in employmentmakes the persons discriminated be unable to get a chance of employment ,or only can obtain less opportunities of employment , thus not only theirmaterial life is influenced , but also may make them fall into the poverty.Meanwhile, the repelling of the society can make them lose the power andchance of raising vocational skills, and have reduced social efficiency; it willhinder fast development of the economy finally. At present the discriminationfor peasant-worker and outside employee in institutional discrimination inemployment of our country has already hindered the free flowing ofworkforce. It has already become the negative factor of restricting fastdevelopment of economy in our country.Phenomenon of discrimination in employment is the unequal treatmentto employees, however the inequality does not mean being inequitable. Thistext proves the injustice of discrimination in employment by analyzing twojust principle of Rolls and two kinds of equal rights of Dworkin, this is thetheoretical foundation of this text, and a theoretical foundation of theanti-discrimination too. Institutional discrimination in employment of our country is because ofthat paid little attention paid to the protection of human rights in our countryfor a long time. Under the system of planned economy, individual is only onespare part in the plan of unification of the motherland, and there is no one'sown independent consciousness at all, under the employment system ofrecruit and tribute unitedly in unison, the citizen can not choose one's ownjob freely, they can only obtain employment according to the nationalarrangement, and regard finishing the plan of the country as the primary task.Peasants are limited on the land for the need of national economicdevelopment, they can only be engaged in agriculture's working, and theycan't enter the cities or towns and participate in obtaining employment. In theemployment system, peasants are not the employment subject that thecountry approves, Compared to urban residents, peasants' employment statusis inequitable, and such unequal employment status is caused by peasant'sdiscriminatory policy in employment of the country. After the reform of the economic system, the economic system of ourcountry is the transition from has been changed from planned economy intomarket economy, it has broken the pattern that resources is distributedunitedly by the country originally, and the market leads the distribution ofresources. The market economic system requires that the economic subject inthe market is equal subject, and can transact one's own economic benefitsfreely. The ways of adjustment and control makes country only withdrawfrom economical operation of microcosmic and carry on macroscopicadjustment and control to market. The personal rights become the importantcontent that the law should protect day by day. The development of the theoryof human rights has promoted the law to pay close attention to the realizationof the citizen's Social rights, economic rights, and cultural rights further, theprotection for human rights in our country is not only passive again, but itadopts the positive action to prevent and avert the discrimination, and shouldadopt the positive action to guarantee realizing the real equality. The function of State power in market makes the transition frommicrocosmic to macroscopic; the state power should withdraw from theconcrete economic activity. But because our country is in the transition of thesociety at present, we have not set up complete market economy yet, andthe market cannot distribute all resources effectively yet. Meanwhile, even ifthe really and fully effective market, it will have situation of " not working "too , so still need state power providing guidance and regulation for market toa certain extent. But this kind of guidance and regulation must accord withthe economic rule of development, and it is guidance and regulation under therestraint of the law, it must go on according to the procedure of the legalprovisions in the range of the legal provisions. But because of law lagging characteristic of itself, law can not make theprompt response to the social things what happened constantly, thus willpresent "space"in law, namely does not have corresponding law to issue insome fields, thus some inequitable social phenomena will take place. Inperiod of making the transition of economic system in our country, thedevelopment of market economy need labor market of free flowing, andcountry has already no longer forbidden the peasants of countryside to gointo town to work, But legally, the legal status of the ordinary laborer ofpeasant-workers is not accepted yet, and peasants are still repelled outsidethe range of the normal work legal protection on the system. So peasants'interests can't get effective protection. Meanwhile because the economicdevelopment level in every area of our country is uneven, the situation ofdemand for workforce in every area has nothing in common with each othertoo. The developed area has attracted large quantities of workforces to pourinto this place; it has brought the pressure on employment to local persons.The local government has adopted the discriminatory employment policy forforeign port employees in order to guarantee the full employment of this areamembers, not only limits on work post and trade but also collects variouskinds of unreasonable expenses from them to increase the employment costof outside employees, it makes the outside employees in unfavorable status incompeting with local employees. It is also another important manifestation of...