— From the Perspective of Rectifying Private Law with Social Law

 

 

Abstract: 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 proof, 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.

 

Keywords: right to equal employment · private law · social law · right infringement of discrimination in employment · discriminatory employment behaviors

 

The Report to the 20th National Congress of the Communist Party of China emphasizes the need to eliminate unreasonable restrictions and employment discrimination that affect equal employment so that everyone has the opportunity to achieve their development through hard work. Since the outbreak of COVID-19, workers have been treated differently due to health, region, registered residence, and other factors when returning to work. The downturn in the international economy, the transformation of domestic population policies, and the changes in work methods brought about by the digital economy have intensified the risk of workers being subject to unreasonable differential treatment due to factors such as gender, marriage, childbirth, and age. In the industrial digital era, the new employment model of algorithmic management in the workplace has brought new risks of algorithmic discrimination. These have all sparked widespread public attention to the issue of employment discrimination. In recent years, national agencies have issued multiple normative documents prohibiting employment discrimination.¹ But the issue of employment discrimination not significantly improved. This reflects the difficulties in legal remedies regarding the right to equal employment in China, such as the low cost for employment discrimination, light legal liability, and obstacles to liability identification. Therefore, studying how to effectively remedy the right to equal employment is significant in practice.

 

The research on the right to equal employment in China mainly focuses on the introduction of foreign experience, the construction of China’s anti-employment discrimination legislation, the regulation of specific discriminatory behaviors, and the protection of specific groups.² We mainly focus on the macro level of necessary legislation theory, but in practice, there is a lack of research on the legal remedies in terms of the right to equal employment in China,³ and the existing research has deficiencies. First, research results need to be updated. In recent years, there have been significant changes in the legal remedies for the right to equal employment. In December 2018, the Supreme People’s Court’s Notice on Increasing the Causes of Civil Cases (Law [2018] No. 344) included “disputes over the right to equal employment” as the specific cause of “general personality rights disputes.” In May 2020, the Civil Code was promulgated and the right to personality was independently codified. In October 2022, the Law on the Protection of Women’s Rights and Interests was significantly revised. These legal remedies for the right to equal employment have had a significant impact. Existing research often precedes the aforementioned practices. Existing problems may have been solved, while new problems have not yet been explored. Second, theoretical research on anti-employment discrimination legislation needs to be promoted. Existing research is mostly in the stage of proposing viewpoints in legislative theory, but there is a lack of basic theoretical research to support legislative viewpoints. The legal attributes, legislative purposes, value balance, objects of adjustment, and methods of anti-employment discrimination law have not yet been discussed. The legislative perspective has only limited guidance for practice. Therefore, this paper aims to comprehensively examine the status quo of the legal remedies for the right to equal employment in China, identify the difficulties and their causes, seek legal support to guide the improvement of relief mechanisms, and explore effective relief methods and solutions.

 

 

There is often confusion in the selection of legal basis when courts try disputes over equal employment. The academic community’s research on the legal remedies for the right to equal employment relatively overlooks the specific operation of the practice, and there are misunderstandings about the current situation of relief, which urgently need to be clarified. To seek an effective remedy for the right to equal employment in China, it is first necessary to comprehensively review the current situation and characteristics of remedies, laying a foundation and identifying the prerequisite for subsequent discussions.

 

 

From a legislative perspective, the substantive rights of the right to equal employment in China are regulated by social law, while the relief path is regulated by private law.⁴ Anti-employment discrimination presents the characteristics of private law relief implemented through private civil litigation, with specific paths mainly including tort liability and personality rights liability. First, the induced provisions of social law on employment discrimination relief channels point to private litigation methods. Article 62 of the Employment Promotion Law stipulates that “In case of employment discrimination in violation of the provisions of this Law, the laborer may bring a lawsuit in a people’s court.” This article clarifies the right of workers to litigation remedies, but the specific rules for determining responsibility are still unclear and need to be explored. Second, if an employer infringes on the right to equal employment and causes damage, workers can request litigation relief for compensation for infringement damages. The first half of Article 68 of the Employment Promotion Law stipulates that “Whoever, in violation of the provisions of this Law, infringes upon the lawful rights and interests of laborers, thereby causing property losses or other damages, shall bear civil liabilities according to law.” This is a comprehensive provision of the law regarding legal liability, which can be applied to employment discrimination. Finally, if an employer infringes on the right to equal employment and causes danger or obstruction, the worker may request litigation relief for general personal rights liability. There are two reasons for this. First, Article 1167 of the Civil Code stipulates that “Where a tortious act endangers the personal or property safety of another person, the infringed party shall have the right to request the tortious party to bear such tortious liabilities as stopping the infringement, removing the obstruction or eliminating the danger.” Secondly, in December 2018, the Supreme People’s Court’s Notice on Increasing the Causes of Civil Cases (Law [2018] No. 344) included “disputes over the right to equal employment” as the specific cause of “general personality rights disputes”. These constitute the substantive and procedural legal basis for the legal remedies for the right to equal employment through the liability of personality rights.

 

There is a misunderstanding in the academic community regarding the legislative characteristics of the legal remedies for the right to equal employment, which needs to be clarified. First, strictly speaking, workers cannot seek direct relief through labor dispute mediation, arbitration, and litigation. On the one hand, the provision of “litigation” in Article 62 of the Employment Promotion Law does not explicitly refer to labor dispute litigation, and the expression about civil liability in Article 68 of the Law conforms to the language structure of infringement compensation disputes rather than labor disputes. On the other hand, the scope of accepting labor disputes is generally stipulated in Articles 2 and 52 of the Labor Dispute Mediation and Arbitration Law, and specifically stipulated in Articles 1, 2 and 10 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Law Interpretation [2020] No. 26). None of the above provisions explicitly list equal employment matters. Therefore, there is no direct legal basis for the relief of the right to equal employment through labor dispute channels. Second, typical public laws do not provide clear remedies for the right to equal employment. In terms of criminal law and criminal liability, although the second half of Article 68 of the Employment Promotion Law deals with criminal liability, the Criminal Law does not provide for the charges and penalties of employment discrimination.⁵ In terms of administrative law and administrative liability, neither the full text of the Employment Promotion Law nor the basic provisions on legal liability in Article 68 mention administrative liability for employment discrimination. The Law on Penalties for Administration of Public Security also does not stipulate administrative liability for employment discrimination.⁶ Finally, there is room for special public law norms in the social legal domain to regulate employment discrimination, but the effectiveness still needs to be examined. The Labor Security Supervision Regulations issued in 2004 did not list equal employment issues as the objects of labor supervision. In the authoritative interpretation book of the Employment Promotion Law compiled by the Legislative Affairs Commission of the National People’s Congress Standing Committee, the reason is clearly stated: considering the lack of a clear definition and identification criteria for employment discrimination, it is difficult for the labor administrative department to obtain relevant evidence when determining whether there is employment discrimination. Once the conclusion is faced with administrative litigation, it will be difficult to provide evidence.⁷ The revised Law on the Protection of Women’s Rights and Interests in October 2022 added the content of public law relief for gender discrimination in employment, which is a significant promotion of the right to equal employment relief in China. For example, in terms of relief channels, Article 49 explicitly includes gender discrimination in the scope of labor security supervision, which is the first legal provision at the legislative 

level to explicitly include employment discrimination as the object of labor supervision. Taking another example, in terms of administrative liability, many specific situations have been listed. Article 83 stipulates that if an employer commits employment discrimination in the recruitment and employment process, during the pregnancy, perinatal and lactation periods, and retirement of female workers, the human resources and social security department shall impose administrative liability. Article 80 adds administrative liability should be imposed by public security organs if employers fail to fulfill their duty to prevent sexual harassment. For example, in terms of the type of litigation, Article 77 includes the issue of the right to equal employment in the public interest litigation of procuratorial organs. The aforementioned new regulations are important aspects of promoting public law remedies for gender-based employment discrimination, but they have not yet been effectively implemented. At the same time, the overall impact of the revision of this law on China’s anti-employment discrimination still needs to be examined. The implementation needs to be coordinated by specialized regulations of the labor security supervision departments, public security organs, and procuratorial organs. Therefore, it can be clarified that at the legislative level, the right to equal employment still mainly adopts a private law relief model in China, with two main paths of civil litigation: personality rights liability and tort liability.

 

 

A full-text search was conducted of judicial cases on PKULAW, using the search terms “equality,” “employment,” and “discrimination.” There were nearly a hundred cases with the right to equal employment as the disputed matter. According to the types of cases, the types with numbers from high to low are labor disputes and labor contracts, personality rights, right to equal employment, social insurance and other administrative acts, tort liability, and contracting negligence. The discrimination elements involved include gender, marriage and childbearing, sexual orientation, nationality, health, region, registered residence, age, educational background, etc. After screening one by one, the types of cases can be further integrated based on judicial logic. First, the logic behind the trial of the right to equal employment disputes is the same as that of general personality rights disputes and therefore can be covered by personality rights disputes. Second, although the “Book of Personality Rights” of the Civil Code separates the absolute right to claim personality rights from the right to claim compensation for infringement damages of creditors, in judicial practice, the judicial logic often adopts the “Book of Personality Rights” to confirm rights and the “Book of Tort Liability” to provide general relief. Personality rights disputes are covered by tort liability disputes.⁸ Third, the trust interests protected by the liability for contracting negligence can be protected through the purposeful expansion of the principle of good faith in the conclusion of labor contracts. Therefore, disputes over contracting negligence liability can be covered by labor contract liability disputes.⁹ Fourth, social security disputes and other administrative behavior disputes are often classified separately due to the existence of state organs or public officials as the subject of litigation, and their essence is still tort liability.¹⁰ Therefore, from the perspective of judicial logic, the trial of disputes over the right to equal employment in China follows two paths: general tort liability under typical private law and labor contract liability under special private law.

 

The general tort liability of typical private law is a direct and main path to legal remedies for the right to equal employment, with the following characteristics: (1) The determination of employment discrimination mainly applies to the theory of the constituent elements of general tort liability, where the determination of subjective fault and a causal relationship is strict. For example, in the “dispute over the right to equal employment between Yan Jialin and Zhejiang Sheraton Resort Co., Ltd.,”¹¹ the original trial court held that “On whether Sheraton has infringed on Yan Jialin’s right to equal employment, it’s necessary to judge whether there is employment discrimination, whether employment opportunities are infringed, whether there is a causal relationship between employment discrimination and adverse consequences, and whether there is a subjective fault.” (2) The burden of proof is based on the basic principle of “who claims, who provides evidence.” Workers need to bear all the burden of proof, including the burden of proof and the burden of persuasion, which constitute the elements of tort liability. Otherwise, they will bear adverse consequences.¹² (3) The form of liability prioritizes property liability, with personal liability being secondary, and there may even be judgments that replace apologies with money for emotional distress.¹³

 

The labor contract liability of special private law is an indirect way to relieve the right to equal employment. There is a basic consensus on the view that the Labor Contract Law is a special private law in the social legal domain.¹⁴ The Labor Contract Law does not design anti-employment discrimination clauses, but labor contract liability can indirectly remedy the damages caused by employment discrimination. The judicial practice has the following characteristics: (1) In terms of litigation procedures, courts often do not recognize equal employment as an independent litigation claim when trying labor disputes. Laborers Workers often advocate that employment behavior carried out by employers with discriminatory motives is illegal, but courts often require labor arbitration to be conducted in advance and refuse to accept a case otherwise. This leads to employment discrimination disguised as changes in labor contracts being in a vacuum of labor dispute litigation and arbitration jurisdiction.¹⁵ (2) In terms of the legal basis, the court mainly cites the provisions on liability for contracting negligence¹⁶ and confirmation of the validity of labor contracts¹⁷ and rarely recognizes illegal dismissal. Some courts dare to identify the legal loopholes in employment discrimination regulations in the Labor Contract Law, and indirectly protect the right to equal employment by invoking the principle of good faith in the Labor Contract Law with a purposeful expansion of interpretation.¹⁸ But the vast majority of courts ignore, circumvent or even deny the fact-finding of discrimination elements and the identification of legal loopholes. (3) In terms of the form of liability, property liability is given priority, and relational liability is secondary. Judicial practice often terminates labor contracts through compensation for losses and payment of liquidated damages, with less support for the continued performance of labor contracts.

 

Therefore, through a review of both legislative and judicial aspects, it can be seen that the right to equal employment in China today mainly relies on private law remedies. There are two specific paths. First, individual workers have the right to claim infringement liability through typical private law paths and to file civil lawsuits to seek direct relief for employment discrimination. Second, through the special private law path of labor contract liability claims, civil litigation can be filed to seek indirect relief for employment discrimination.

 

 

There are many difficulties in the model of private law remedies for the right to equal employment in China. In substantive law, the determination of employment discrimination in the path of tort liability adopts the method of general tort constitutive requirements, which has significant misunderstandings. In the path of labor contract liability, the loopholes in the regulation of discriminatory employment in the Labor Contract Law lead to the lack of a direct basis for judgment, which further causes the overall barrier toward the identification of the boundary of employment discrimination. In procedural law, there is confusion and imbalance in the burden of proof rules for employment discrimination. In terms of relief effectiveness, there are limitations in the relief functions of civil liability and private law autonomy, and even secondary legal damages may occur.

 

 

Tort liability is the main way to remedy the right to equal employment. Judicial practice categorizes employment discrimination as a general tort, applies the general principles of tort liability law indiscriminately to the anti-employment discrimination law, and identifies employment discrimination using the method of determining the constituent elements of the general tort. This tendency of the tort of employment discrimination ignores the characteristics of employment discrimination itself and the independent historical context, legislative purpose, and language structure of anti-discrimination employment legislation.

 

 

China’s legislation against employment discrimination has never imitated tort law. It has an independent historical context, legislative purpose, and language structure. The courts interpret employment discrimination as a general infringement, narrowing the anti-discrimination employment law down to a law that compensates for personal fault. This characterization misunderstands the basic nature of the anti-discrimination employment law: It is a law that protects the right of workers to work without discrimination, with the aim of providing meaningful opportunities for economic and social participation for workers.¹⁹

 

From the legislative history and current system of anti-discrimination employment law, the substantive rights of the right to equal employment originate from the Constitution and are specifically stipulated by social law, rather than from civil law. Employment discrimination is not a general civil tort. Article 4, Article 33, Article 34, Article 48, and other provisions of the Constitution stipulate the right of citizens to equal treatment before the law, while Article 42 clarifies the labor rights enjoyed by citizens. Under the organic combination of equal rights and labor rights stipulated in the Constitution, the right to equal employment was born. The specific departmental laws in China’s social legal system, such as the Labor Law, Employment Promotion Law, Law on the Protection of Women’s Rights and Interests, and Law on Protection of Disabled Persons, stipulate the general right to equal employment enjoyed by workers and the specific right to equal employment enjoyed by specific groups. In the civil law system, neither the General Principles of the Civil Law nor the Tort Liability Law nor the current tort liability and personality rights sections of the Civil Code, have specific provisions on employment discrimination. The independence of legislative evolution inevitably determines that the hasty introduction of tort law into anti-employment discrimination discrimination employment law will cause many difficulties.

 

From the perspective of the purpose and language structure of the anti-employment discrimination employment law, employment discrimination, and infringement are not similar. In terms of language structure, the provisions prohibiting employment discrimination in the Labor Law and the Employment Promotion Law, such as “workers shall not be discriminated against due to differences in ethnicity, race, gender, religious beliefs, etc.,” have never defined the meaning of “due to.” In judicial practice, the anti-discrimination structure of “due to” is interpreted as “intention” or “causal relationship,” so the language of infringement is introduced in the determination of employment discrimination. But in fact, tort law usually does not use “due to” to express “intention” or “causal relationship,” and the language of anti-discrimination law does not use commonly used expressions such as “intent,” “negligence,” “causing” or “damage” in tort law. The tendency of following the tort law of anti-discrimination in employment regards discrimination as a deliberate act of a specific individual, rather than an unfair economic impact or result experienced by workers, which is far from the purpose of anti-discrimination employment.²⁰

 

 

To determine employment discrimination through infringement, one definition of “due to” in the prohibition of employment discrimination is “intention,” which means that workers need to prove that the employer’s discriminatory behavior has an intentional or negligent subjective fault. However, the anti- discrimination employment law focuses on whether a specific behavior has certain illegal characteristics, which is a question of interpretation of the behavior. The anti-discrimination employment law prohibits discrimination itself, rather than seeking the underlying elements of discrimination (such as intentions), so it does not matter whether the employer intends to discriminate or whether the worker can prove such an intention.

 

Essentially, human discriminatory behavior does not distinguish between the existence of a certain intention and non-discriminatory behavior. D. Don Welch believes that “intention” refers to the “purpose” and “design” of the actor when taking action, emphasizing whether the actor aims to achieve the expected results of their actions.²¹ The intention is not an internal state or event, nor is it a description of the actor’s inner state, but rather a perception of the actor’s external characteristics of a certain behavior. We use the language of intention and attribute it to humans as a way of understanding human behavior. The language of intention describes the public and observable world, rather than the untouchable inner world.²² Unconscious discrimination theorists believe that discrimination is not always caused by conscious hostility. Cognitive psychologists do not believe that conscious discriminatory intentions will facilitate employment decisions, and they believe that discrimination does not necessarily occur at the moment of decision-making. On the contrary, stereotyping and other tacit knowledge structures have a biased influence on decision-making long before decision-making. Under the combined influence of social patterns and various other judgment methods, even well-intentioned individuals can expect to develop biases towards the perception and judgment between groups. Structural discrimination theorists argue that the root cause of discrimination is not always bad individual or corporate policies, but rather an unconscious recognition of the way work is organized. Discrimination is often a mixture of intentional, negligent, and unconscious motives and actions.²³

 

Therefore, it is difficult to say that discriminatory behaviors and consequences such as differential treatment, differential influence, and harassment are caused by the intentional or negligent intention of the employer. It can only be said that the behaviors and consequences of discrimination reflect the intention of the actor, and the intention and behavior are bound together. The determination of fault liability in employment discrimination will simplify the complex analysis of anti-employment discrimination laws restricting employment behaviors based on protected characteristics, leading to narrow and omitted remedies.²⁴

 

 

In general tort determination of employment discrimination, another interpretation of “due to” in the provisions prohibiting discrimination in employment is “because” or “causal relationship”, which requires the worker to prove that the employer has committed discriminatory acts and consequences because of discriminatory intent. However, this proof requirement is fundamentally different from the causal relationship in general tort liability. The issue of causality in general tort liability involves the connection between two physical events: did the actor’s behavior cause harm to the victim? However, the answer to the above question in the traditional causal theory of infringement is always affirmative, as the discriminatory damage suffered by workers is always caused by the discriminatory behaviors of the employers. If the “due to” in the provisions on the prohibition of employment discrimination is considered a causal relationship, it is inevitable to assume that some events are the cause, which is necessary to determine discrimination. Therefore, the causal relationship in the general tort determination of employment discrimination is different from the scenario applied by the causal relationship theory in traditional torts. It is not the connection between the behavior of the perpetrator and the damage suffered by the victim as defined by traditional causal theory, but rather that between the perpetrator’s behavior and some internal events that serve as the cause of the perpetrator’s behavior. This has led to employment discrimination disputes becoming a process of searching for these underlying reasons, and intention seems to be the only reasonable choice.

 

The example of a US court using an object hitting another object and causing it to move demonstrates that this simple causal model based on physical contact experience does not apply to the understanding of human behavior.²⁵ Tort law and criminal law tend to use this causal model to explain human action, which divides it into two parts: the intention of the inner spirit and the action of the body, where the intention is the cause of physical action. However, this is not consistent with the way we usually think about human behavior. Generally speaking, intention cannot be the cause of action because it is a language artificially created to understand human actions, and intention is logically linked to action through the same description. The relationship between an intention and its expected action is logical rather than accidental. However, when we discuss the cause of a behavior or event, it cannot necessarily be logically related to its outcome, which means that the relationship between the cause and the outcome can only be accidental or related. Therefore, human actions are not caused by internal factors such as intention, and traditional causal theory cannot explain human discriminatory behavior.²⁶

 

It is precisely based on the failure of traditional causal theory to explain human discriminatory behavior that the confusion in the application of causal criteria such as “Substantial Factors”²⁷, “But-for Cause”²⁸ and “Proximate Cause”²⁹ has become inevitable, and courts have avoided or even abandoned the analysis of causal relationships in discrimination. For example, in the application of proximate cause standards, there are differences in how to grasp the closeness of the time between the discriminatory elements to be examined and differential treatment. In the case “Yang Zichen v. Hangzhou Ciyuan Cultural and Creative Co., Ltd. on right to equal employment,”³⁰ the court insisted that the determination of the causal relationship of discrimination should be analyzed from a longer period. But in fact, it has denied the theory of proximate cause standards. The original trial court of this case held that “Yang Zichen’s violation of labor discipline has continuity, and the Ciyuan company did not ‘suddenly’ deal with the violation after Yang Zichen underwent gender reassignment surgery, even though Yang Zichen had already complied with the company’s attendance system. Therefore, it cannot be concluded that the time when the company decided to terminate the labor contract occurred after Yang’s gender reassignment operation and that there is a causal relationship between them in law.” However, the opinion of the “Guan Xin v. Beijing Fat Reduction Times Technology Co., LTD. right to equal employment dispute appeal” was the opposite.³¹ The court insists on strictly determining the causal relationship of discrimination based on the standards of proximate cause, that is, excluding overly distant, purely accidental, or indirect connections, and requiring that there is a direct and close connection between the elements of discrimination advocated by workers and differential treatment. The court of the first instance of the case held that “Guan Xin claimed that on May 23, 2017, she was arranged to go on a business trip after her pregnancy, which resulted in her symptoms of fever and abortion, but Guan did not submit outpatient medical records or diagnostic certificates to support her claim. The hospital diagnosis certificate dated August 31, 2017, submitted by Guan mentioned threatened abortion, and there is no evidence to support the causal relationship between Guan’s business trip and threatened abortion.” Thus, it can be seen that the courts’ determination of employment discrimination based on the theory of tort causality is often chaotic, arbitrary, and uncertain.

 

 

The anti-discrimination norms of the Employment Promotion Law are not sufficient to replace the establishment of anti-discrimination clauses in the Labor Contract Law. Throughout the anti-discrimination norms of the Employment Promotion Law, whether it is a prohibition clause, a confirmation clause, or a legal liability clause, it is more targeted at acts directly infringing on the right to equal employment. Workers can request compensation for infringement damages liability and personality rights liability for direct and obvious violations of the right to equal employment by employers. However, the reality is that in the exercise of labor relations, indirect and covert violations of the right to equal employment, represented by discriminatory employment, are more common. However, the law for individual labor relations coordination, namely the Labor Contract Law, does not regulate the discriminatory elements in the changes of labor relations. In practice, this leads to a lack of direct and clear legal basis for legal remedies for labor contract liability in more widespread and hidden employment discrimination.

 

Employment discrimination is often intertwined with the employment management behavior of employers. The concept of employment discrimination itself should be defined in detail by the labor relations coordination law and set up in provisions regulating employment management behavior and changes in labor relations. Only by defining employment discrimination in this way can it be more concrete and have clear guidance for both corporate compliance and worker rights protection. In reality, with the improvement of employers’ awareness of compliance with the law and regulation, the situation of direct discrimination has been reduced. The phenomenon of employers blatantly discriminating against workers is gradually decreasing. But this does not mean that discrimination, a chronic disease of social inequality, has been completely cured. As it is difficult to change the social problems of “stereotype”, such as social cognitive bias, unconscious discrimination, and structural discrimination, in a short period, there are a large number of illegal employment behaviors, or discriminatory employment behaviors, made by employers out of discriminatory motives or mixed discriminatory and non-discriminatory motives in practice. This type of discriminatory employment, which uses the legitimate employment management claimed by employers to cover up discriminatory elements, is more covert, complex, and widespread, with a more profound impact.³² The difficulty in providing evidence of discriminatory motives — as well as the rebuttal of employers using the pretext of exercising autonomous management — pose challenges for courts in determining the facts and reasoning of discriminatory employment.

 

Whether it is direct employment discrimination or indirect employment discrimination, workers often find it difficult to obtain effective remedies through general tort liability. The crux of this is that discrimination is not a defined object of tort law, and employment discrimination is naturally rooted in the process of employment and the operation of labor relations. However, in the Labor Contract Law, a representative of the labor relations coordination law, the lack of labor contract liability for discriminatory employment behavior is undoubtedly an important reason for the unclear concept of employment discrimination in China. It is an important representation of the confusion between the right to equal employment and general civil rights, and also a significant impairment of the protecting function of anti-employment discrimination legislation for vulnerable groups. This has led to a lack of favorable means for workers to remedy the right to equal employment and has also led to a lack of clear compliance guidance for employers to prevent employment discrimination. What’s more, in the context of the complex international and social situation and the new technological revolution today, the in-depth integration of discrimination and employment process has bred new types of discrimination, such as “algorithm discrimination,” “data discrimination,” “platform discrimination,” and systematic discrimination and structural discrimination in the context of the COVID-19 pandemic. These are beyond the effective remedies of general tort liability that are detached from the labor process.³³ Therefore, in addition to emphasizing that employment discrimination is a special statutory infringement in a general sense, relying on individual labor relations coordination laws, such as the Labor Contract Law, to regulate employment discrimination is an indispensable key link in ensuring the right to equal employment. This is also consistent with the legislative experience of the International Labour Organization’s Convention against Employment Discrimination No. 111, Chapter 7 of the US Civil Rights Act, and the EU Equal Treatment Directive, Revised Directive, and Framework Directive, which define employment discrimination as illegal employment behavior and prohibit discrimination throughout the labor process.³⁴

 

 

The judicial practice adheres to the general principle of “who claims, who provides evidence’ in civil litigation when adjudicating equal employment disputes, neglecting the characteristics of relational contracts between employers and employees, including controllability and subordination, continuity, inequality, and investment specificity,³⁵ resulting in an imbalance in the distribution of the burden of proof.

 

In cases of direct relief for employment discrimination infringement liability, workers bear the liability of presenting evidence and persuasion for all the constituent elements of infringement liability, otherwise, they need to bear adverse consequences. The problem is that there are many misunderstandings when transplanting the constituent elements of general infringement to the determination of employment discrimination. Court decisions are more of a free evaluation of evidence and are full of uncertainty. As mentioned earlier, discriminatory behavior inherently does not distinguish whether there is an intention to discriminate. And with many “stereotypes”, unconscious discrimination, and structural discrimination, employers themselves do not know whether there is an intention to discriminate. However, the causal relationship theory of tort law explains the connection between the objective existence of behavior and events, making it difficult to explain the relationship between human intentions, motivations, and other internal mental states and the behavior of the objective world. Besides, it is difficult for workers to bear the responsibility of presenting evidence and persuading all the elements of employment discrimination. Whether the employer has the concept and motive of discrimination in the heart, it is fundamentally difficult for others to collect evidence to prove and persuade. However, traditional tort liability requires the victim to fulfill the persuasive liability of causality based on the standard of superior evidence, which makes it even more difficult to explain the relationship between human behavior and discriminatory intent.³⁶ Finally, the distribution of exemption and defense liability is vague. It is not yet known whether genuine professional qualifications, commercial interests, and other legitimate non-discriminatory grounds in extraterritorial legislative experience can serve as grounds for exemption in China. There is also no discussion on whether the employer’s defense liability is to present evidence or to persuade.³⁷

 

In cases of indirect remedy of labor contract liability for employment discrimination, the courts still adhere to the general principle of “who claims, provides evidence.” First, it needs to be clarified that although traditional labor disputes are filled with a general understanding of the “inversion of the burden of proof,” this principle only protects vulnerable workers at the level of presenting evidence,³⁸ and the specific facts to be proven are still the liability of persuasion borne by the workers. Second, the indirect remedy of the right to equal employment through labor contract liability is often a violation of the Labor Contract Law, which is not directly related to employment discrimination. The deviation of the object of proof leads to a significant reduction in the remedy effect for employment discrimination. Finally, even if the court takes discriminatory employment as the focus of the dispute, it often requires workers to bear the burden of evidence and persuasion for the elements or motives of discrimination. In reality, discriminatory employment is often illegal employment behavior motivated by discrimination or a mixture of discrimination and non-discrimination. Employers often use the excuse of normal employment management to cover up the motivation and purpose of discrimination. The discriminatory motives of employers themselves are difficult for others to learn and provide evidence. Moreover, under the discriminatory employment situation of “mixed motivation,” employers’ employment decisions have both legitimate reasons and illegal discriminatory motives. Even if there is no motive for discrimination, employers may take adverse actions against workers. This “mixed motivation” discriminatory employment behavior belongs to a new type of proof object in China, and what kind of proof liability rules should be applied is a major challenge.³⁹ As Judge Posner said, “It is always difficult to prove discrimination. Even the simplest defendant will not acknowledge discriminatory motives or leave behind documentary clues to prove it. Because most employment decisions involve discretion, other reasoning about the employment decision is always possible and reasonable.”⁴⁰

 

 

The civil liability of private law remedies has shifted the main goal of the anti-employment discrimination law from encouraging employers to prevent discrimination to providing monetary compensation to victims, making the right to equal employment remedies another variant of infringement claims. This will lead to a significant change in society’s perception of discrimination: concerted efforts to eliminate discrimination will be weakened, and the direction of remedies will be to provide monetary compensation for past discrimination, without paying special attention to preventing future discrimination. For companies, discrimination claims, like accidents, are the cost of doing business, which inevitably means that discrimination cannot be effectively remedied.⁴¹

 

The reality of the disadvantaged status of workers determines that the adjustment of private law autonomy based on equal subjects will weaken the value of the right to equal employment and even exacerbate employment discrimination. Although private law remedies for equal rights in job seeking can eliminate personal material infringement to a certain extent, the possibility of employment for workers is also eliminated, and there may even be a distortion of workers’ image in the industry due to their active rights protection, resulting in secondary damages in law. The shortcomings of private law remedies for the right to professional equality are more obvious. Workers will conduct an analysis of interest on whether to request private law remedies, mainly considering three key issues: the difficulty of providing evidence, the effectiveness of legal liability remedies, and the possibility of the existence of labor relations. As mentioned earlier, the rules of proof are severely imbalanced. The limited supplementary nature of civil legal liability determines that the subjective initiative of workers to claim private law remedies is extremely low. It is almost impossible to maintain the stability of labor relations after private law remedies.⁴² The litigation process has caused significant opposition between workers and employers. It is unclear whether private law autonomy has corrected the bias of employment discrimination of employers. However, it is conceivable that the operation of labor relations is not smooth. And improper private law remedies may even trigger group incidents.⁴³ 

 

Therefore, there are many difficulties in private law remedies for the right to equal employment in China. There are inherent obstacles and important omissions in the current remedies in substantive law. For example,employment discrimination cannot be compared to and covered by traditional general infringement, and there is a significant lack of regulation on employment discrimination in the labor relations coordination law. There is an imbalance in the burden of proof in procedural law that hinders the realization of functions of substantive law. There are also inherent limitations to private law itself in terms of legal liability and means of adjustment. Reflecting on the above difficulties and their causes, the root cause lies in the misunderstanding of the essential attributes of China’s anti-discrimination employment law found in current practice. The current remedy adheres to the private rights standard of the right to equal employment, mistakenly believes that the subjects of equal employment disputes are equal civil subjects, and then confuses the nature and purpose of anti-discrimination employment law and tort law. The remedy of the right to equal employment is not designed differently from other general civil rights remedies. In fact, from a fundamental and long-term perspective, the private law remedy model fails to grasp that the essence of infringement on the right to equal employment is the competition and cooperation between public and private interests, fails to recognize that the right to equal employment is the integration of public and private interests, and neglects the social law domain of the remedies of the right to equal employment. Therefore, it is necessary to re-examine and analyze the nature, purpose, and other attributes and characteristics of the anti-discrimination employment law to find the solution to the difficulties.

 

 

The essential attribute of anti-discrimination employment law is social law rather than private law. In the third legal domain featuring the integration of public law and private law, social law and legal departments are represented by labor law and social security law. They take solving people’s livelihood problems and ensuring the realization of people’s livelihood as their responsibility. They take the interdependence and interaction of social rights and social control power as their core category and take a harmonious, all-round well-off society, and shared development as their main policy orientation. In the selection of value objectives, they adhere to the principle of prioritizing fairness while taking into account efficiency, and the principle of integrating social security and development. In terms of the legal mechanism, they adhere to the principle of co-governance between government and society.⁴⁴

 

 

The right to equal employment is an important aspect of human rights, which embodies a fundamental and irreversible principle of ensuring that workers have meaningful opportunities for economic and social participation, allowing them to be judged based on their work abilities, and avoiding differential treatment based on the core group characteristics of human identity. These goals are important elements of human rights. The Universal Declaration of Human Rights, the Philadelphia Declaration of the International Labour Organization, and the Constitution of the PRC are the international and domestic sources of human rights and the right to equal employment, which cannot be weakened by judicial interpretation. Employment discrimination is not a general infringement, but a special statutory infringement that infringes on an individual’s or a group’s fundamental rights.

 

It is generally believed that public law involves both national and social public interests, while private law involves private interests, including the interests of individual citizens and legal persons. Labor law is regarded as the legal department of a social legal domain that combines public and private law attributes, with both public and private interests.⁴⁵ The substantive rights of the right to equal employment are stipulated by social law. Although they focus on the personal rights and interests of workers, each provision contains considerations for the public interest concerning equal employment, fully demonstrating the integration of public and private interests. Infringement of the right to equal employment is an infringement upon the competition and cooperation of public and private interests. Private interests refer to the right to equal employment of individual workers who have been infringed upon, while public interests refer to the right to equal employment of potential groups of workers who have been harmed by discrimination, the fair competition order in the labor market, and the basic rights of citizens. The infringement of public interests is more important and far-reaching. The goal of the anti-employment discrimination law includes not only supporting compensation for victims of discrimination to relieve damaged private interests but also safeguarding more critical public interests, namely eliminating employment discrimination as a social issue. The private litigation of the right to equal employment not only has the function of relieving private rights but also has an important social function of pursuing substantive social fairness.

 

 

It is generally believed that private law is based on personal interests, public law is based on national interests, and social law is based on social public interests. Social law not only maintains social security but also enhances the common welfare of human society by enhancing cooperation and coordination capabilities.⁴⁶ Social public interest generally refers to the public’s desire and need for a civilized state of society, including the peace and security of public order, the health, safety, and efficiency of economic order, the reasonable preservation and utilization of social resources and opportunities, the interests of the weak in society, the maintenance of public morality, and the conditions for human development towards civilization.⁴⁷

 

Anti-discrimination employment law is designed based on and rooted in the maintenance of social and public interests. Although supporting compensation for injured individuals to protect personal interests is a goal of the anti-employment discrimination law, tort compensation has never been the original intention of the legislation. The anti-employment discrimination law is a manifestation of public policies related to citizens’ rights, which attempts to eliminate and prevent social errors of employment discrimination, namely the adverse effects on economic equality, educational equality, and the views of social members towards specific groups, in order to maintain the safety and efficiency of social order as well as public morality. It prohibits employers from promoting deep-rooted social inequality and strives to eliminate a system that consolidates group affiliation and occupational segregation to protect the interests of workers, a disadvantaged group in society, and to ensure the rational utilization of social resources and opportunities. Anti-discrimination employment law goes beyond the corrective justice based on personal interests and pursues substantive social fairness. The corrective justice of private law based on private interests claims that the loss caused by fault should be corrected by the wrongdoer. And anti-employment discrimination law transcends the requirement of corrective justice based on private interests. The most obvious example is that corrective justice will never require employers to fulfill a positive obligation to provide reasonable convenience, nor will it impose liability on employers under differential influence.⁴⁸ Anti-discrimination employment law differs significantly from traditional private law in balancing private and public interests. Anti- discrimination employment law imposes obligations and responsibilities on employers to prevent and eliminate discrimination, and its deterrent function takes priority over compensation for personal losses. The civil litigation of employment discrimination not only aims to safeguard the personal interests of workers but also considers them as “private prosecutors” and safeguards public interests in eliminating objectionable discrimination.⁴⁹

 

 

The labor law balances fairness and efficiency but emphasizes fairness. Anti-discrimination employment law, as a sub-sector law of labor law, also adheres to the value judgment of prioritizing fairness while taking into account efficiency. There are two rules for the substantive argumentation of the value judgment of labor law. First, in the absence of sufficient, necessary, and legitimate reasons, we should adhere to the basic position of “capital is strong and labor is weak” and give priority to protecting workers. Second, the specific methods of measuring interests in pursuit of substantive fairness shall not be restricted.⁵⁰ In the value judgment of labor law, protecting workers is more important than labor management.⁵¹ The argumentation rules for measuring the value of labor law apply to anti-employment discrimination law. The value goals of the anti-employment discrimination law include substantive fairness,⁵² anti-subordination and social equality,⁵³ economic efficiency,54 redistribution of benefits,⁵⁵ solidarity,⁵⁶ etc. The most important value goals that need to be balanced are fairness and efficiency. The value judgment of which is more important, fairness or efficiency, is the guideline guiding the anti-employment discrimination law in dealing with the conflicts between the two values of legislation and justice. In this regard, it is first necessary to establish the same comparison platform and standard as a prerequisite for comparing the two values. Then, using this standard as a comparative guide, compare the benefits and damages generated by the legal rules against employment discrimination on the two values. And finally, choose a value goal that is more profitable and necessary as the priority value.

 

The standard to judge the priority of fairness and efficiency is actually what value can better achieve the fundamental purpose of the anti-employment discrimination law, which is to ensure that workers are not treated differently based on their identity and group characteristics, to ensure that workers are judged by the market based on their work abilities, and to promote meaningful economic and social participation of workers. The infringement of employment discrimination on workers’ personality rights, equality rights, and labor rights poses a threat to social security and equality, neglecting their true labor capacity and production efficiency, and thus affecting social development. The pride and prejudice of such discriminatory employment management pose a significant threat to social security and equality but do not bring sufficient benefits to society. On the one hand, the rules of anti-discrimination employment law can promote social equality and security to achieve social benefits. On the other hand, a united, harmonious, corporate environment that respects workers can more easily attract and retain talents. A labor market that respects the identity, characteristics, and work abilities of workers can also stimulate people’s work potential and promote overall efficiency. The goal of anti-employment discrimination is not to prevent employers from making profit-oriented decisions and management but to abolish such practices that do not bring significant benefits solely due to the pride and prejudice of decision-makers. This regulation does not need to come at the cost of the loss of profits. Of course, employers will have to bear the compliance cost of not being able to obtain utility from abusive behavior, but this utility loss can be ignored because it comes from illegal preferences, and the additional risks of punishment will be much higher than the utility brought by abusive behavior. Therefore, anti-discrimination employment law adheres to the principle of prioritizing fairness in value judgments, which can better achieve the fundamental purpose of anti- discrimination in employment and indirectly maintain and improve efficiency, thus achieving the unity of fairness and efficiency, and ensuring the promotion of social security and social development.

 

 

The right of private law and the power of public law are contradictory The expansion of public power is due to its nature, and the extreme protection of private rights will also endanger the public interests of society. With the development of the social economy, conflicts between personal interests and social interests inevitably arise. Social law is proposed based on coordinating the conflicts between private law rights and public law powers.⁵⁷ The right to equal employment enjoyed by workers belongs to social rights. Workers have the right to participate equally in the economy and society through labor, without being discriminated against due to identity factors unrelated to work. The power enjoyed by employers to manage workers stems from the social control power granted by the state to formulate and implement labor discipline through the Constitution and laws. Correspondingly, workers have the obligation to abide by labor discipline and accept the management of employers according to the Constitution and laws. Employment discrimination is manifested directly or indirectly through the integration of management power. Therefore, private law remedies only focus on compensation for the impairment of the right to equal employment for workers, while neglecting the regulation of the management power of employers, which fundamentally determines the inevitability of the dilemma.

 

The labor law has a dual nature in terms of its purpose, as it is both a labor protection law and a labor-management law.⁵⁸ The true remedy for the right to equal employment requires not only the protection of private rights through private law mechanisms to obtain post-mortem relief in case of infringement but also the regulation of management power through public law mechanisms to impose liability on employers through the duty of care. This requires employers to create a workplace that provides meaningful economic opportunities for everyone. Anti-discrimination employment law shifts the focus from identifying individuals with discriminatory intentions to eliminating barriers to equal economic participation of workers in the workplace. The employer’s duty of care is an active defense against any employment discrimination lawsuit. The result of the non-performance of the duty should constitute a strong presumption that the employment decision in question is discriminatory. This will shift the focus of remedies for employment discrimination from the rights of victims to the corresponding responsibilities of violators, from compensatory rulings to deterrent rulings, from the concept of fault and damage to the concept of corporate social responsibility, from the concept of objective damage consequences to the concept of statutory duty of care, and from compensating for individual losses to reducing the social costs of conflicts. These ideological changes have been the main content of legal realism since the 20th century, but the remedies for the right to equal employment are still trapped in the conceptualization of classical legal thought in the 19th century and have not been reformed.⁵⁹

 

To summarize, the equal employment goal undertaken by anti-discrimination employment law integrates public and private interests and is based on the social public interest. It integrates the concepts, principles, and spirit of public and private laws, with addressing the issue of inequality in citizens’ participation in the economy and society as its responsibility. It takes the interaction between the right to equal employment and labor management rights as its core category and maintains the main policy direction of safeguarding citizens’ rights, social security, fairness, efficiency, and public morality. In terms of value goals, it adheres to the principle of prioritizing fairness while taking into account efficiency, and the principle of integrating social security with the development of social law. All these characteristics determine that the essential nature of anti-employment discrimination law is social law rather than private law. The deviation in positioning the anti-employment discrimination law as private law is the root cause of the dilemma of the right to equal employment remedies. And the solution to the dilemma is naturally based on a thorough understanding of the social law nature of the anti-employment discrimination law, and improving the mechanism by correcting private law through social law.

 

 

Private law remedies with biased positioning and weak remedies will inevitably struggle to achieve the social care and responsibility that the socialist legal system with Chinese characteristics should have. The solution to the dilemma of the right to equal employment remedies in China is based on the theoretical support of the social law nature of the anti-employment discrimination law. The procedural law incorporates equal employment disputes into the negotiation, mediation, labor supervision, and labor arbitration procedures of social law governance procedures, achieving integration with the current civil litigation procedures of private law remedies. In substantive law, the concept of social law should be used to correct the shortcomings of private law remedy mechanisms and transform them, thus forming a remedy mechanism for the right to equal employment with Chinese characteristics. The effective remedy mechanism for the right to equal employment mainly includes the special tort liability system, the Labor Contract Law regulation mechanism for discriminatory employment, the legal liability system for public-private integration, and the substantively fair burden of the proof system.

 

 

The special tort liability system for equal employment adheres to the principle of liability without fault, with the employer’s duty of care and breach of duty as the constituent elements. It integrates the liability for infringement damages and general personality rights in current private rights remedies to solve the problem of competition and cooperation in litigation. At the same time, the liability forms of anti-discrimination public interest protection are added. The dynamic systems theory is used to measure the size of the liability,⁶⁰ especially the degree of malignancy of the subjective fault of the employer and the closeness of the causal relationship.

 

First, the duty of care and the breach of duty are two major elements that constitute infringement. Employment discrimination is a statutory infringement. The duty of care and the breach of duty is defined by legal texts, and the court has no authority to decide whether to impose a duty. What the court can do is interpret and confirm the boundaries of specific obligations.⁶¹ By correctly understanding the legislative purpose of anti-employment discrimination law and integrating the connotations of private and public interests, the coverage of discrimination should be appropriately expanded. The threshold for determining illegality can be appropriately lowered, and accordingly, reasonable adjustments should be made when measuring the degree of liability based on the subjective intention of the employer, the closeness of the causal relationship, and the impact of the damage. This can not only ensure the judicial recognition of the right to equal employment for workers but also facilitate the reasonable acceptance of rulings by employers.⁶²

 

Second, causality is not a constituent element, but it plays an auxiliary role in determining the breach of duty of care and measuring the size of liability. The rule of causal inference should be adopted to identify employment discrimination to reduce the burden of proof on victims and reduce the complexity of identification.⁶³ Specifically, after completing the burden of proof for the behavior and consequences of employment discrimination, it should be inferred that there is a causal relationship between the harm suffered by the worker and the employer’s discriminatory motive or intention, thus completing the proof of the employer’s breach of duty of care. The reason for using causal inference is that the causes of discrimination are inherently difficult to explain, and this is not the focus of anti-discrimination law. Moreover, with the transformation of digital technology in the working process, the deep integration of discrimination and employment has nurtured various new forms of discrimination. These pose a significant challenge to the causal relationship theory of traditional tort law. Therefore, it is necessary and legitimate to adopt causal inference to strengthen effective protection for disadvantaged workers.

 

Finally, in terms of subjective fault, the principle of liability without fault should be adhered to, and workers should not be required to prove the fault intention of the employer. However, workers can choose to assert the magnitude of liability by proving the malicious degree of the intention. The court determines different types of legal liability based on the fault and the degree of fault. For example, the liability for punitive damages must be based on the subjective malice of the employer as a necessary condition.

 

 

The regulatory mechanism for discriminatory employment should clarify the connotations and extensions of discriminatory employment behavior, and clarify the relationship between the right to claim labor contract liability and the right to claim special tort liability for equal employment. Discriminatory employment refers to labor management behaviors or hostile environments created by employers motivated by discrimination. There are two main types of discriminatory labor management behaviors. The first type of behavior is motivated by discrimination to lower labor conditions, such as labor remuneration, working hours, rest and vacation, safety and health, welfare benefits, etc. The second type of behavior is improper changes in labor relations motivated by discrimination, including unreasonable job transfers, salary reductions, and layoffs. The discriminatory hostile environment is different from individual discriminatory behavior. It refers to the oppressive work environment accumulated by employers’ repeated, persistent, and long-term hostile behaviors motivated by discrimination. For instance, the accumulation of verbal sexual harassment in the workplace can lead to gender discrimination.⁶⁴

 

There are differences in the relationship between the right to claim labor contract liability for discriminatory employment and the right to claim special tort liability for equal employment in terms of their basis, application, and protection orientation. The two paths are independent and complementary to each other, forming a complete remedy chain. The specific remedy path to be adopted is chosen by the worker based on their reality, which can be either one or both options and will be jointly tried by the court.⁶⁵ Workers whose rights are infringed upon by employment discrimination in any situation can obtain relief through the right to claim special tort liability for equal employment. This path is featured by broad guarantee and comprehensive remedies but with a relatively heavy burden of proof. The labor contract liability for discriminatory employment specifically refers to the protection of the labor standards, labor contract changes, social security, and other rights enjoyed by workers during the work process during the existence of the labor relationship, and the protection of workers from being treated differently due to their group characteristics. This is a relief approach that emphasizes the relatively low burden of proof for workers based on the subordinate nature of labor relations and the existence of employment evidence such as labor contracts during the employment period, but the corresponding form and degree of legal liability will be limited.

 

 

The legal liability for employment discrimination should not only cover civil liability such as tort liability and contract liability, but also include factors such as labor standards and public law regulations in social security, forming a legal liability featuring public-private integration.

 

The types of legal liabilities for employment discrimination are classified based on the content of legal interests infringed upon, which roughly include labor standards, labor contracts, social security, and the liability for protecting special groups, thus integrating the “dual effectiveness of public and private laws.” The legal norms against employment discrimination impose orders and prohibitions on employers, forming contractual liabilities with a mandatory nature. The formation effect of these contractual liabilities stems from the interest maintenance obligation of the employer in the abstract contract, and the anti-employment discrimination law makes it more concrete in various forms.⁶⁶

 

The legal liability types for employment discrimination can be roughly divided based on their functions, including three categories: obstructive, compensatory, and punitive liabilities. Obstructive legal liability includes prohibition and suspension of special measures, which better replace the civil liabilities of stopping infringement, eliminating obstacles, eliminating danger, and truly realizing the functions of prevention and obstruction. Compensatory legal liabilities include mandatory reinstatement, retroactive and prepaid wages, compensation for mental damage, litigation fees, lawyer’s fees, and payment of liquidated damages, which better replaces and refines civil liabilities for continued performance, compensation for losses, and payment of liquidated damages. Punitive legal liabilities include punitive damages and qualification penalties, filling the functional loopholes in deterring acts that infringe on public interests.⁶⁷

 

The principle of determining legal liability should be based on the value hierarchy of equal employment, with priority given to the functions of obstruction, deterrence, and compensation, respectively.⁶⁸ It is necessary to pay attention to the characteristics of relational contracts between employers and workers, strengthen the handling of interpersonal relationships, recognize the high cost of specialized investment for workers, and strengthen the cost of discriminatory dismissal by employers.⁶⁹ The principle of adapting crime, liability, and punishment in the Criminal Law can be used to determine the corresponding size of liability based on the degree of the discriminatory intent of the employer to avoid the polarization of “all or none” discrimination liability in remedies.⁷⁰ The method of measuring the size of liability adopts dynamic systems theory, focusing on the fault degree of the employer, the closeness of causality, the severity of damage consequences, and the probative power of affirmative defense.⁷¹

 

 

To establish an essentially fair system for the responsibility of adducing evidence for employment discrimination, it is necessary to integrate the general principle of “who claims, provides evidence” and the inclined protective spirit of “inversion of proof liability.” Following the “revised norms theory”⁷² and the basic values of policy orientation, substantive fairness, and proportionality principle, we should develop a reasonable framework of proof liability rules for initiating litigation, presenting evidence, and assuming the burden of persuasion. First, in substantive law, the determination of discrimination follows two elements: the duty of care and the breach of duty. The worker shall bear the responsibility of filing a lawsuit, presenting evidence, and persuading the prima facie evidence of the breach of duty by the responsible evidence standard. Employers can refute the probative power of prima facie evidence. Subsequently, cases with conclusive prima facie evidence should establish a rebuttable presumption of discrimination, thus forming a system for transferring the burden of proof. The employer shall bear the liability of defending prima facie evidence of discrimination, that is, an affirmative defense. Employers have two specific ways of defense. One is to refute the claim that differential treatment proposed by workers is illegal, with specific reasons including genuine professional qualifications, commercial interests, and other legal reasons for legitimate differential treatment. The other is to prove that the management behavior is discriminatory employment based on “mixed motivation” to limit the form of liability and reduce the degree of liability. Finally, when the employer fails to meet the defense liability to refute the presumption of discrimination, the worker has the right to receive corresponding remedies.⁷³

 

 

Re-examining the relief practice of the right to equal employment in China, we will find that the current remedy model is based on the specific paths of typical private law tort liability and special private law labor contract liability. However, equal employment involves both public and private interests and is based on the social public interest. There are naturally many difficulties in private law remedies featured by positioning deviation and weak remedies. The chaos of law enforcement and judiciary is a manifestation, and the fundamental crux lies in the legislative level, that is, the nature of anti-employment discrimination law is social law rather than private law. Therefore, to achieve effective relief of the right to equal employment, it is necessary to take the correction of private law by social law as the direction and provide institutional resources at the legislative level to guide, correct, and promote law enforcement and judicial practice. As for legislative skills, the long-term goal is to provide specialized legislation on anti-employment discrimination in the form of a department law of social law. The short-term goal is to add and improve specific institutional provisions in the existing legal system, including adding a chapter on “special infringement concerning equal employment” in the Book of Tort Liability of the Civil Code, adding special provisions on regulating discriminatory employment in the Labor Contract Law, adding provisions of “equal employment governance procedures” and “equal employment burden of proof” in the procedural law to the Labor Dispute Mediation and Arbitration Law and the judicial interpretation of labor disputes, and attention should be paid to ensuring the coordination between legislation and practice. Xi Jinping, General Secretary of the Communist Party of China (CPC) Central Committee emphasized in the Report to the 20th National Congress of the Communist Party of China that we should “improve the well-being of the people and improve the quality of life of the people,” and he pointed out that we should “coordinate the policy system of urban and rural employment, remove the institutional and policy disadvantages that hinder the flow of labor and talents, eliminate unreasonable restrictions and employment discrimination that affect equal employment so that everyone has the opportunity to realize their development through hard work.”⁷⁴ Improving the remedy mechanism by correcting private law through social law can truly and effectively protect the right to equal employment, better regulate the constantly changing labor and employment behavior in the digital industrialization era, and make due contributions of social law to alleviating and eliminating discrimination and inequality in social interaction, and helping everyone participate more fairly in economic and social life.

 

(Translated by CHEN Feng)

 

* ZHOU Yuan ( 周圆 ), Doctoral student at the School of Law, Renmin University of China. This paper is the research result of the Scientific Research Fund Project (supported by the Special Funds for Basic Scientific Research for Central Universities) of Renmin University of China, “Research on Solving the Dilemma of Private Law Relief for the Right to Equal Employment in Social Law” (Project Approval No. 21XNH019).

 

1. Recent normative documents such as the Emergency Notice on Resolutely Combating Employment Discrimination against People Recovered from COVID-19 issued by the Ministry of Human Resources and Social Security and the National Health Commission on August 1, 2022 (Ministry of Human Resources and Social 

Security Mingdian [2022] No. 8).

 

2. Representative literature includes Lin Jia, “On the Legal Regulation and Control of Employment Discrimination in China,” Henan Social Sciences 5 (2006); Xie Zengyi, “Comparison of the Elements of Employment Discrimination between the United States and Britain: Also on the Development Trends of Anti-Employment Discrimination Laws and Legislative Choices in China,” Peking University Law Journal 4 (2008); Zhou Wei, Research on Anti-Discrimination Law: Legislation, Theory and Cases (Beijing: Law Press · China, 2008); Cai Dingjian and Liu Xiaonan, Anti-Employment Discrimination: Expert Suggestions and Overseas Experience (Beijing: Social Sciences Academic Press, 2010); Yan Tian, “Rethinking the Contemporary Rise of Anti-Employment and Non-Discrimination Law in China,” Peking University Law Journal 3 (2012); Lu Haina, State Protection of Equal Employment Rights in China: From the Perspective of International Law (Beijing: Law Press · China, 2015); Wang Qian and Yu Shulin, “The Relief Dilemma of Workplace Sexual Harassment and an Analysis Based on Judicial Cases,” Human Rights 2 (2022), et al.

 

3. Representative literature include Lin Jia and Yang Fei, “On the Judicial Relief of Workers subjected to Employment Discrimination,” Political Science and Law 4 (2013); Xie Zengyi, “Substantive Legal Remedy for Victims In Terms of Right to Equal Employment,” Social Science Front 7 (2016); Wang Xianyong, “On the Judicial Relief for the Right to Equal Employment,” Journal of Chinese Women’s Studies 2 (2020); Liu Xiaonan and Yang Yifan, “Legal Issues of Dispute Cases over the Right to Equal Employment in China,” Chinese Journal of Human Rights 3 (2021), etc.

 

4. In order to unify the writing, avoid ambiguity, and facilitate the exchange of laws between different departments, it is necessary to clarify the concept of “social law” and its specific reference for use in different contexts in the text. There are three definitions of “social law” in the academic community: broad, medium, and narrow. This paper uses broad “social law” and medium “social law” according to different contexts. The broad sense of “social law” refers to the “social legal domain” that is parallel to private law and public law, also known as the ““third legal domain.” In the context of elaborating methodology, this paper uses a broad sense of “social law” for comparison with private law, such as “social law corrects private law” in the text. The medium sense of “social law” refers to the “social law department group” that is parallel to civil and commercial laws and administrative law, with labor law, social security law, social organization and behavior law, and special group protection law as the main components. In the context focusing on legal provisions, legal attributes, and mechanism construction, the author uses the medium sense of “social law,” such as “essential attributes of social law,” “departmental laws of social law,” and “social law provisions” in the text. For the definition of “social law,” please refer to Lin Jia, “On the Social Law Nature of Social Security Law: On the Relationship between Labor Law and Social Security Law,” The Jurist 1 (2002); Wang Quanxing, Labor Law (Law Press · China, 2017, 4th edition), 42-51.

 

5. In China’s Criminal Law, only the crimes of inciting ethnic hatred and ethnic discrimination may indirectly involve employment discrimination, but according to common sense, they cannot be directly applied.

 

6. Only regulatory measures that incite ethnic discrimination in China’s Law on Penalties for Administration of Public Security may indirectly involve employment discrimination.

 

7. Commission of Legislative Affairs of the NPC Standing Committee, Interpretation of the Employment Promotion Law of the People’s Republic of China (Law Press · China, 2007), 179.

 

8. There is still controversy over the difference between liability for personality rights and liability for infringement. See Wang Liming, “On the Separation of the Right of Claim for Personality Right and the Right of Claim for Tort Damages.” China Legal Science 1 (2019); Beijing No. 3 Intermediate People’s Court (2021) Beijing, 03, Civil, Final, No. 6702: Civil judgment of “Dispute over Right to Equal Employment between Guan Xin and Beijing Fat Reduction Times Technology Co., Ltd.”

 

9. Beijing Chaoyang District People’s Court (2008) Chao, Civil, Primary, No. 06688: Civil judgment of “Gao Yiming v. Beijing Bide Chuangzhan Communication Technology Co., Ltd. on Labor Contract Dispute.”

 

10. the Administrative Judgment No. 11 (2003) issued by the People’s Court of Xinwu District, Wuhu City, Anhui Province, and the Administrative Judgment No. 1061 (2019) issued by the Beijing Second Intermediate People’s Court.

 

11. Zhejiang Hangzhou Internet Court (2019) Zhejiang 0192 Min Chu No. 6405 Civil Judgment.

 

12. the Civil Judgment of the People’s Court of Yuexiu District, Guangzhou City, Guangdong Province (2019) Yue 0104 Civil Chu 41708, “Dispute Case between Du * and Guangdong Yuehai Lijiang Real Estate Development Co., Ltd.”.

 

13. the Civil Judgment of the Third Intermediate People’s Court of Beijing (2016) Beijing 03 Civil Final No. 195, “Deng ** v. Beijing ** Express Logistics Co., Ltd. and Beijing ** Labor Dispatch Co., Ltd. General Personality Rights Case.”

 

14. Shen Jianfeng, “Labor Law as Special Private Law: Positioning of Labor Law under the Background of the Enactment of Civil Code,” Peking University Law Journal 6 (2017); Wu Wenfang, “Reflections on the Evolution and Research Path of Social Law Theories,” ECUPL Journal 4 (2019).

 

15. the Civil Judgment of the Intermediate People’s Court of Qingdao City, Shandong Province (2021) Lu 02 Civil Final No. 9789, “Li * v. Qingdao Qilin Electronics Co., Ltd. on the right to equal employment.”

 

16. the Administrative Judgment No. 11 (2003) issued by the People’s Court of Xinwu District, Wuhu City, Anhui Province, and the Administrative Judgment No. 1061 (2019) issued by the Beijing Second Intermediate People’s Court. In this case, the court provided a detailed explanation for the applicability of civil law liability for contracting negligence to labor contracts.

 

17. the Civil Judgment of Intermediate People’s Court of Changzhou City, Jiangsu Province, (2020) No. 3486.

 

18. the Civil Judgment of Beijing Second Intermediate People’s Court (2019) Beijing 02 Civil Final No. 11084, “Beijing Dangdang Information Technology Co., Ltd. v. Gao ** on Labor Contract Dispute Appeal.” This case is a representative case of social law correcting private law in the legal remedies for the right to equal employment in China, and has strong guidance.

 

19. Maria L. Ontiveros, “The Fundamental Nature of Title VII,” 75 Ohio State Law Journal 6 (2014): 1167.

 

20. Sandra F. Sperino, “The Tort Label,” 66 Florida Law Review 3 (2014): 1053.

 

21. D. Don Welch, “Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather than Intent,” Southern California Law Review 60 (1987): 738.

 

22. Paul J. Gudel, “Beyond Causation: The Interpretation of Action and the Mixed Motives Problem in Employment Discrimination Law,” 70 Texas Law Review 1 (1991): 98. 

 

23. Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” 47 Stanford Law Review 7 (1995): 1161-1166.

 

24. D. Don Welch, “Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather than Intent”, 1052-1054.

 

25. Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity”, 89.

 

26. Ibid., 106.

 

27. The “Essential Factors” test is usually applicable to cases with multiple causal relationships. If the defendant’s behavior is a significant factor causing harm, even if other reasons may cause harm too, the defendant is responsible for the plaintiff’s harm, which is more due to policy considerations. See D. Don Welch, “Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather than Intent”, 1065-1066.

 

28. The “But-for Cause” test suggests that if there were no defendant’s actions, the injury would not have occurred, and then the defendant’s actions were the cause of the plaintiff’s injury, see D. Don Welch, “Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather than Intent”, 1065-1066.

 

29. The ‘Proximate Cause’ test suggests that there is a direct relationship between the claimed harm and harmful behavior, excluding those that are too distant, purely accidental, or indirect. See Charles A. Sullivan, “Tortifying Employment Discrimination,” 92 Boston University Law Review 5 (2012):1431.

 

30. Civil Judgment of Hangzhou Intermediate People’s Court of Zhejiang Province (2020) Zhe 01 Civil Final No. 2725.

 

31. Civil Judgment of Beijing Third Intermediate People’s Court (2021) Beijing 03 Civil Final No. 6702.

 

32. Joseph A. Seiner, Employment Discrimination: Procedure, Principles, and Practice, 2nd edition (New York: Wolters Kluwer, 2019), 21-26.

 

33. Solon Barocas and Andrew D. Selbst, “Big Data’s Disparate Impact,” 104 California Law Review 3 (2016): 671-732; Stephanie Bornstein, “Anti-discriminatory Algorithms,” 70 Alabama Law Review 2 (2018): 519-572; Daiquiri J. Steele, “Preserving Pandemic Protections,” 42 Berkeley Journal of Employment and Labor Law 2 (2021): 321-370.

 

34. Dir 76/207 [1976] OJ L39/40 Equal Treatment Directive; Dir 2006/54/EC [2006] OJ L204/23 Recast Directive; Dir 2000/78/EC [2000] OJ L303/16 Framework Directive; Evelyn Ellis and Philippa Watson, EU Anti-Discrimination Law, 2nd edition (Oxford: Oxford University Press, 2012), 280.

 

35. Wang Quanxing, Labor Law (Beijing: Law Press · China, 4th edition, 2017), 132-135.

 

36. Civil Judgment of People’s Court of Suzhou Industrial Park in Jiangsu Province (2019) Su 0591 Civil Primary, No. 264.

 

37. Robert Belton, “Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice,” 34 Vanderbilt Law Review 5 (1981): 1239. 

 

38. Article 6 of the Labor Dispute Mediation and Arbitration Law of China, Article 2 of the Notice on Establishing Labor Relations (Labor and Social Affairs Ministry [2005] No. 12), and Article 44 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I).

 

39. Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) and articles 703 (m) and 706 (g) (2) of the United States Civil Rights Act of 1991 established the illegality and form of liability for discriminatory employment with mixed motivation. See Christopher Y. Chen, “Rethinking the Direct Evidence Requirement: A Suggested Approach in Analyzing Mixed-Motives Discrimination Claims”, 86 Cornell Law Review 4 (2001): 900.

 

40. Riordan v. Kempiners, 831 F. 2d 690, 697 (7th Cir. 1987).

 

41. William R Corbett, “Unmasking a pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself,” 62 American University Law Review 3 (2013): 467-468. 

 

42. the Civil Judgment Civil Final No. 2459 (2020) of Suzhou Intermediate People’s Court in Jiangsu Province, and the Civil Judgment Civil Final No. 736 (2020) of Hangzhou Intermediate People’s Court in Zhejiang Province.

 

43. the Civil Judgment of the Intermediate People’s Court of Liangshan Yi Autonomous Prefecture, Sichuan Province (2018) Chuan 34 Civil Final, No. 349, reputation dispute case between Sanpin Jiuchi Duck Intestine King self-service hot pot restaurant on Jianchang Road, Xichang City v. Haozhiwei Jiuchi Goose Intestine Hot Pot Restaurant and Chen * in Xichang City.

 

44. Lin Jia, “On the Social Law Nature of Social Security Law: On the Relationship between Labor Law and Social Security Law,” The Jurist 1 (2002); Wang Quanxing, Special Research on Basic Theories of Economic Law (Beijing: China Procuratorial Press, 2002), 142-157; Zheng Shangyuan, “The Positioning and Future of Social Law,” China Legal Science 5 (2003); Xie Zengyi, “The Concept, Essence and Orientation of Social Law: Foreign Experience and Local Resources,” Study & Exploration 5 (2006); Zhao Hongmei, Private Law and Social Law: Basic Theoretical Paradigm of Social Law in the Third Legal Domain (Beijing: China University of Political Science and Law Press, 2009), 363-365.

 

45. Civil Judgment of People’s Court of Suzhou Industrial Park in Jiangsu Province (2019) Su 0591 Civil Primary, No. 264, page 48-49.

 

46. Lin Jia, Labor Law and Social Security Law (Beijing: China Renmin University Press, 4th edition, 2016), 1-2.

 

47. Sun Xiaoxia, Phenomena and Concepts of Law (Beijing: Mass Publishing House, 1995), 68-69.

 

48. William R. Corbett, “What Is Troubling about the Tortification of Employment Discrimination Law,” 75 Ohio State Law Journal 6 (2014): 1046.

 

49. the Civil Judgment Civil Final No. 2459 (2020) of Suzhou Intermediate People’s Court in Jiangsu Province, and the Civil Judgment Civil Final No. 736 (2020) of Hangzhou Intermediate People’s Court in Zhejiang Province, page 449.

 

50. Zhou Yuan, “Conflict and Coordination of Mixed Contract Forms between Companies and Executives,”Journal of Northeast University (Social Science) 6 (2021).

 

51. Civil Judgment of People’s Court of Suzhou Industrial Park in Jiangsu Province (2019) Su 0591 Civil Primary, No. 264, page 50.

 

52. Noah D. Zatz, “Disparate Impact and the Unity of Equality Law,” 97 Boston University Law Review 4 (2017): 1357-1426.

 

53. Samuel R. Bagenstos, “Employment Law and Social Equality,” 112 Michigan Law Review 2 (2013): 225-274.

 

54. Stewart J. Schwab, “Predicting the Future of Employment Law: Reflecting or Refracting Market Forces,” 76 Indiana Law Journal 1 (2001): 29-48.

 

55. Samuel R. Bagenstos, “Consent, Coercion, and Employment Law,” 55 Harvard Civil Rights-Civil Liberties Law Review 2 (2020): 409-466.

 

56. Lindsay F. Wiley and Samuel R. Bagenstos, “The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law,” 52 Arizona State Law Journal 4 (2020): 1235-1302.

 

57. Lin Jia, “On the Social Law Nature of Social Security Law and the Relationship between Labor Law and Social Security Law,” The Jurist 1 (2002).

 

58. Civil Judgment of People’s Court of Suzhou Industrial Park in Jiangsu Province (2019) Su 0591 Civil Primary, No. 264, page 49-50.

 

59. Richard Thompson Ford, “Bias in the Air: Rethinking Employment Discrimination Law,” 66 Stanford Law Review 6 (2014): 1383-1386.

 

60. The dynamic systems theory guides judges to consider the weight, utility and complementarity of some factors and draw conclusions, which is more flexible and open, so as to meet the needs of justice in complex situations. See Wang Liming, “Highlights and Innovations of the Book of Personality Rights in the Civil Code,”China Legal Science 4 (2020).

 

61. W. Jonathan Cardi, “The Role of Negligence Duty Analysis in Employment Discrimination Cases,” 75 Ohio State Law Journal 6 (2014): 1129.

 

62. Leora F. Eisenstadt and Jeffrey R. Boles, “Intent and Liability in Employment Discrimination,” 53 American Business Law Journal 4 (2016): 643.

 

63. Wang Liming, Wang Liming Collection of Academic Works: Volume of Tort Liability (Beijing: Peking University Press, 2020), 349.

 

64. National Railroad Passenger Corp. v. Morgan 536 U. S. 101 (2002).

 

65. Wang Xianyong, “On the Judicial Relief of Right to Equal Employment,” Journal of Chinese Women’s Studies 2 (2020).

 

66. Lin Jia and Chen Wentao, “On the Legal Effect of Labor Benchmark Law,” Tsinghua University Law Journal 4 (2014).

 

67. Sullivan, Charles A., Zimmer and Michael J., Cases and materials on employment discrimination, 9th edition (New York: Wolters Kluwer Legal & Regulatory, 2017), 561-603.

 

68. the Civil Judgment Civil Final No. 2459 (2020) of Suzhou Intermediate People’s Court in Jiangsu Province, and the Civil Judgment Civil Final No. 736 (2020) of Hangzhou Intermediate People’s Court in Zhejiang Province, page 449.

 

69. Yehuda Adar and Moshe Gelbard, “The Role of Remedies in the Relational Theory of Contract-A Preliminary Inquiry,” 7 European Review of Contract Law 3 (2011): 417-418.

 

70. Wang Liming, Wang Liming Collection of Academic Works: Volume of Tort Liability (Beijing: Peking University Press, 2020), 349.

 

71. William R. Corbett, “Breaking Dichotomies at the Core of Employment Discrimination Law,” 45 Florida State University Law Review 3 (2018): 763.

 

72. Yuan Zhonghua, “Criticism on the Inversion of Burden of Proof in Labor Disputes,” Global Law Review 3 (2017).

 

73. Article 6 of the Labor Dispute Mediation and Arbitration Law of China, Article 2 of the Notice on Establishing Labor Relations (Labor and Social Affairs Ministry [2005] No. 12), and Article 44 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I), page 1279-1280.

 

74. Recent normative documents such as the Emergency Notice on Resolutely Combating Employment Discrimination against People Recovered from COVID-19 issued by the Ministry of Human Resources and Social Security and the National Health Commission on August 1, 2022 (Ministry of Human Resources and Social 

Security Mingdian [2022] No. 8).