Adjudication Rationale For Claims Of Gender Discrimination In Employment

The Supreme People’s Court issued in December 2018 the Notice on the Addition of Causes of Actions for Civil Case(Law[2018]No.344),adding an independent cause of action,"equal employment rights disputes",under the "general personality rights disputes" cause of action,making claims of gender discrimination in employment more justiciable.The causes of action for existing cases include labor disputes and their secondary cause of action "other labor disputes,personnel disputes" and tort disputes and their tertiary cause of action"general personality rights disputes" and quaternary cause of action "equal employment rights disputes".However,in the absence of adjudication criteria,courts,judgments turn out to be ambivalent,with different results under different thinking of the individual judges,which makes it difficult for plaintiffs to obtain remedies.This thesis studies courts’ rationale in adjudicating claims of gender discrimination in employment,with the focus on the causal relationship between the adverse action and the harm.In labor dispute cases,the adjudication rationale often turns out to be deciding whether the employer’s personnel decision has a legal or contractual basis.In general personality rights dispute cases,the court judges whether the employer’s practice constitutes gender discrimination in employment by first looking at whether the positions for which employers are hiring are legally foreclosed for women.Then the court decides whether the personnel decision has a legal basis accordingly.In equal employment rights dispute cases,the plaintiff is required to carry the burden of proof of tort elements and is expected to produce direct evidence of discrimination.In deciding whether there is discriminatory motive,the court often responds to and analyzes each piece of evidence given by the plaintiff on a one-on-one basis,affirming facts and assigning values.If employers claim to have a legitimate motive,courts often choose to respect employers’ freedom of choice,out of their deference to the adjudication rationale under labor dispute cases.But one problem is that plaintiffs cannot possibly meet the burden of proof and often fail to disprove employers’ legitimate motives.The second problem is that when plaintiffs try to use various circumstantial evidence to establish a prima facie case of discrimination,courts often look at each argument separately and in isolation,ignoring the probative value of circumstantial evidence.The third problem is that when facing mixed-motive cases,courts sometimes are more stringent on plaintiffs and think that if employers’legitimate motives are established,unlawful motives just do not matter anymore.The fourth problem is that when an adverse action is jointly implemented by employers and other entities,courts sometimes only regard employers as responsible.In the United States,courts adjudicate direct gender discrimination in employment under the single-motive and mixed-motive frameworks.Under the single-motive framework,if plaintiffs want to win,they must prove as follows.First,plaintiffs shall establish a prima facie case of discrimination.Second,the burden of proof shifts to employers who shall give a legitimate explanation for the adverse action.Third,the burden of proof shifts back to plaintiffs who shall establish discrimination by proving that employers’ explanations are pretextual.Plaintiffs and employers are competing on establishing the sole and true motive behind the personnel decision.Plaintiffs need to prove that but-for causation meaning that employers would not have made the personnel decision if it weren’t for their gender.Under the mixed-motive framework,plaintiffs only need to prove that gender is a motivating factor for employers’ actions,while employers can avoid liability by proving that its legitimate reason,standing alone,would have induced them to make the same decision.After the enactment of the Civil Rights Act of 1991,plaintiffs under the mixed-motive framework only need to prove that gender is a motivating factor for employers’ actions to find employers liable,regardless of the sufficiency of their legitimate reason alone in motivating the adverse action.Currently this dual framework continues to be applied in the United States,and which one to apply depends on the kind of evidence plaintiffs have,their choice,and the circuit courts’ precedents.This thesis proposes four suggestions for addressing the problems arising from the adjudication of gender discrimination in employment in China.The first is to review the probative value of circumstantial evidence.The second is to allocate burden of proof more reasonably so that plaintiffs and employers would share this burden.The third is to adopt a mixed-motive method in assigning liability;if gender is a motivating factor for personnel decisions by employers,discrimination is established.The fourth is to expand the scope of responsible entities for violating equal employment rights,not limited to employers,but also including institutions and individuals that have a significant impact on applicants’employment opportunities,such as labor dispatch service providers and employment agencies.