Constitutional Equal Right And Anti-employment Discrimination

Anti-employment discrimination in China is based on the "constitution as the mother law" and "concretization of the constitution" principles.The focus of antiemployment discrimination legislation is on whether the legislation covers a comprehensive range of employment discrimination types and whether it can further implement the "concretization" principle.The value of equality is emphasized in antiemployment discrimination legislation,and more stringent requirements are proposed to various types of enterprises.Accordingly,there are two mainstream views in China.The first view regards the right to equal employment as the concretization of the constitutional right to equality,and anti-employment discrimination legislation aims to implement the constitutional value of equality.The second view holds that all employers,regardless of nature and scale,should assume the same responsibility for anti-employment discrimination based on the constitution.This paper refers to the theoretical basis of these two views as the "reason of equality."The legislative model formed based on the reason of equality has certain drawbacks.On the one hand,the reason of equality is limited in that it only applies to the state and government.On the other hand,the indiscriminate anti-employment discrimination laws brought about by the reason of equality are likely to eliminate the gradient of public and private employers’ responsibility for anti-employment discrimination.In addition,the reason of equality advocates for implementing antiemployment discrimination issues based on constitutional values,which is debatable.The involvement of constitutional values in private employment relations will restrain private economic interests,have a negative impact on the market economy,and even indirectly contribute to the expansion of employment discrimination factors,creating a hidden path for more serious discriminatory phenomena.This article argues that blindly pursuing concretization and completing antiemployment discrimination legislation based on reason of equality is a misunderstanding of the relationship between the two.The basis for prohibiting employers from engaging in employment discrimination lies in the employment relationship.The employment relationship is characterized by personal dependence and continuity,and it is precisely because of this that all employers,regardless of their nature or scale,should bear anti-employment discrimination responsibilities towards their employees.Introducing the relational approach into the discourse on antiemployment discrimination does not exclude the function of the constitutional principle of equality in this area.Rather,the relational approach aims to provide a reasonable explanation path for private employers who should not bear antiemployment discrimination responsibilities based on the rigid standards of the constitution.For public employers,however,they should still bear anti-employment discrimination responsibilities based on the employment relationship and they shall bear the constitutional responsibility as they will also fall within the scope of the constitutional principle of equality.In summary,China should reflect on the scope of the constraint of the principle of equality.The proposal of the relational approach aims to provide a more reasonable theoretical explanation for the dilemma of China’s antiemployment discrimination legislation,and to establish a theoretical foundation for discussing the constitutional principle of equality and the issue of anti-employment discrimination.This will help set up a gradient of anti-employment discrimination responsibility for different employers in anti-employment discrimination legislation and practice.