The Reconstruction Of Judicial Identification Standards For Employment Discrimination Against People Living With HIV In China

Employment is the foundation of people’s livelihood.In recent years,the problem of employment discrimination against people living with HIV has become increasingly prominent,which has not only severely damaged the equal employment rights of people living with HIV,but also is not conducive to social harmony and stability.Judging from the concluded employment discrimination lawsuits based on HIV in our country,based on the differences in the cause,employment discrimination cases based on HIV are often tried as labor disputes,tort disputes and other types of cases,so there are different identification standards in the judicial system.The vagueness and confusion of the current judicial review standards makes it difficult for people living with HIV to obtain equal employment rights.The Fourth Plenary Session of the 19 th Central Committee of the Communist Party of China proposed that it is necessary to resolutely prevent and correct employment discrimination and create a fair employment system environment.Therefore,there is an urgent need to construct a complete,reasonable and logically self-consistent judicial identification standard for employment discrimination against people living with HIV and strengthen judicial protection for the relief function of employment discrimination cases based on HIV.This article aims to reconstruct the judicial identification standards for employment discrimination against people living with HIV.By combing through the general situation of employment discrimination litigation against HIV in China,the article summarizes the shortcomings of the current judicial identification standards.Besides,it compares the regulations and judicial practices on the elements of discrimination and defenses outside the territory with domestic regulations to judge their pros and cons in identifying employment discrimination against HIV and guaranteeing equal employment rights of the employers.Finally,it is suggested that China shall adopt a two-class paradigm of objectivity and responsibility to reconstruct the judicial identification standards.First of all,at the objective level,the court should judge whether the employer has discriminated against people living with HIV based on the facts of the case.Based on this,the elements of discrimination can be disassembled into three elements: differential treatment,adverse consequences,and causality.Second,at the level of responsibility,the defense system based on bona fide occupational qualifications and public health interests is further refined to determine whether the employer constitutes discrimination in the legal sense.In other words,if the employer objectively implements a discriminatory behavior and there is no illegal hindrance,it will bear the corresponding legal responsibility.The interaction of the above-mentioned systems at various levels will help the court determine whether employers constitute employment discrimination based on HIV,so as to achieve the goal of eliminating employment discrimination and promoting social fairness and justice.It is of great significance to the promotion of the modernization of the national governance system and governance capabilities.