美国就业年龄歧视认定研究
发布时间：2019-03-10 20:20
【摘要】：随着老龄化的严重,中老年劳动力在整个社会劳动力的构成中比例逐年递增,而就业年龄歧视对社会造成的伤害也日益严重。因此,如何禁止就业年龄歧视近年来成为学术研究的热点问题,备受关注。而我国法制发展未深,尚且存在许多议题待深入挖掘;又由于美国的反就业年龄歧视法制发展最早,至今已经有相当丰富的理论实务经验,故本文以美国就业年龄歧视法的实体规则作为研究重点,通过对美国法制的研究,对我国就业年龄歧视法制的发展提出建议。本文共分为四个重要组成部分:第一章是对就业年龄歧视的概述。主要介绍了就业年龄歧视的基本理论问题和美国反就业年龄歧视法的发展历程。其中基本理论问题涉及“就业年龄歧视”概念的界定、年龄歧视的理论基础和年龄歧视的特征;发展历程主要包括美国反就业歧视法整体的发展概况以及《反就业年龄歧视法》的发展。第二章是对直接就业年龄歧视认定的具体论述。首先对美国直接就业年龄歧视的分类进行了简要说明,由此引出对两类直接就业年龄歧视——借口直接就业年龄歧视及混合动机直接就业年龄歧视——的具体认定。借口直接就业年龄歧视是单一动机的年龄歧视,在法院的认定中主要通过对双方提供的不同证据进行歧视动机的分析,如果证据证明雇佣行为的确是基于歧视的动机,则会被认定构成了就业年龄歧视;混合动机就业年龄歧视是多个动机造成的年龄歧视,在法院的认定中主要是对正面和负面动机所占据的地位进行分析,若雇主不能证明即使不存在负面动机,其也会做出相同的不利雇佣行为,则会被认定构成了就业年龄歧视。第三章是对间接就业年龄歧视认定的具体论述。首先对间接就业歧视的历史进行了回顾,并在此基础上对就业年龄歧视中是否存在间接就业年龄歧视进行了论述。接着论述了法院在对间接就业年龄歧视的认定中所用的两种证明方法——“商业必须”证明法和“年龄之外合理因素”证明法。第四章是在对我国目前就业年龄歧视的立法现状和社会现状进行论述的基础上,结合美国的经验从宏观和微观两个角度共计五个方面对我国的立法提出了建议。宏观上:应从宪法层面对就业年龄歧视进行规制;制定专门的反就业歧视法和反就业年龄歧视法。微观上:制定法律时应对就业年龄歧视给出一个明确的定义;应设定例外情形,以保护用人单位的合法权益;应明确用人单位以及劳动者在案件中的双方各自证明责任,而不是简单适用“谁主张谁举证”的一般证明规则。
[Abstract]:With the serious aging, the proportion of middle-aged and old-aged labor force in the whole social labor force increases year by year, and the employment age discrimination has caused more and more serious harm to the society. Therefore, how to prohibit age discrimination in employment has become a hot issue in academic research in recent years. However, the development of legal system in our country is not deep, and there are still many issues to be explored in depth. And because the legal system of anti-age discrimination in employment in the United States has developed the earliest, so far there has been quite a wealth of theoretical and practical experience, so this paper focuses on the substantive rules of the Employment Age Discrimination Act in the United States, and through the study of the legal system in the United States, This paper puts forward some suggestions on the development of age discrimination in employment in China. This paper is divided into four important components: the first chapter is an overview of age discrimination in employment. This paper mainly introduces the basic theory of age discrimination in employment and the development of American anti-age discrimination law in employment. The basic theoretical issues are related to the definition of the concept of "age discrimination in employment", the theoretical basis of age discrimination and the characteristics of age discrimination; The course of development mainly includes the general development of the American Anti-Employment Discrimination Act and the Development of the Anti-Employment Age Discrimination Act. The second chapter is the specific discussion on the identification of age discrimination in direct employment. Firstly, the classification of age discrimination in direct employment in the United States is briefly described, which leads to the specific identification of two categories of age discrimination in direct employment-age discrimination under the pretext of direct employment discrimination and direct age discrimination in employment with mixed motivation. Under the pretext that direct age discrimination in employment is a single-motivating age discrimination, in the court's decision it is mainly through the analysis of the different evidence provided by both parties that the motivation for discrimination, if the evidence proves that the employment is indeed based on the motivation of discrimination, Would be considered to constitute age discrimination in employment; Mixed motivation age discrimination in employment is age discrimination caused by multiple motivations, and in court decisions it is mainly an analysis of the position occupied by positive and negative motivations, if the employer fails to prove that even if there is no negative motivation, It would do the same unfavourable employment, which would be considered to constitute age discrimination in employment. The third chapter is the specific discussion on the identification of indirect employment age discrimination. Firstly, the history of indirect discrimination in employment is reviewed, and on this basis, the existence of indirect discrimination in employment age is discussed. Then it discusses the two methods of proof used by the court in the determination of age discrimination in indirect employment-"Commercial necessity" and "reasonable factors beyond Age". The fourth chapter is on the basis of discussing the current legislative and social situation of age discrimination in employment in our country, and puts forward some suggestions on the legislation of our country from the macroscopic and microcosmic perspectives combined with the experience of the United States. Macroscopically: the age discrimination in employment should be regulated from the constitutional level, and the special anti-employment discrimination law and the anti-employment age discrimination law should be formulated. Micro-level: when making laws, we should give a clear definition of age discrimination in employment, set exceptions to protect the legitimate rights and interests of employers; Instead of simply applying the general proof rule of "who advocates who proves", it is necessary to clarify the respective burden of proof of the employer and the laborer in the case.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D971.2;DD912.5
本文编号：2437983
[Abstract]:With the serious aging, the proportion of middle-aged and old-aged labor force in the whole social labor force increases year by year, and the employment age discrimination has caused more and more serious harm to the society. Therefore, how to prohibit age discrimination in employment has become a hot issue in academic research in recent years. However, the development of legal system in our country is not deep, and there are still many issues to be explored in depth. And because the legal system of anti-age discrimination in employment in the United States has developed the earliest, so far there has been quite a wealth of theoretical and practical experience, so this paper focuses on the substantive rules of the Employment Age Discrimination Act in the United States, and through the study of the legal system in the United States, This paper puts forward some suggestions on the development of age discrimination in employment in China. This paper is divided into four important components: the first chapter is an overview of age discrimination in employment. This paper mainly introduces the basic theory of age discrimination in employment and the development of American anti-age discrimination law in employment. The basic theoretical issues are related to the definition of the concept of "age discrimination in employment", the theoretical basis of age discrimination and the characteristics of age discrimination; The course of development mainly includes the general development of the American Anti-Employment Discrimination Act and the Development of the Anti-Employment Age Discrimination Act. The second chapter is the specific discussion on the identification of age discrimination in direct employment. Firstly, the classification of age discrimination in direct employment in the United States is briefly described, which leads to the specific identification of two categories of age discrimination in direct employment-age discrimination under the pretext of direct employment discrimination and direct age discrimination in employment with mixed motivation. Under the pretext that direct age discrimination in employment is a single-motivating age discrimination, in the court's decision it is mainly through the analysis of the different evidence provided by both parties that the motivation for discrimination, if the evidence proves that the employment is indeed based on the motivation of discrimination, Would be considered to constitute age discrimination in employment; Mixed motivation age discrimination in employment is age discrimination caused by multiple motivations, and in court decisions it is mainly an analysis of the position occupied by positive and negative motivations, if the employer fails to prove that even if there is no negative motivation, It would do the same unfavourable employment, which would be considered to constitute age discrimination in employment. The third chapter is the specific discussion on the identification of indirect employment age discrimination. Firstly, the history of indirect discrimination in employment is reviewed, and on this basis, the existence of indirect discrimination in employment age is discussed. Then it discusses the two methods of proof used by the court in the determination of age discrimination in indirect employment-"Commercial necessity" and "reasonable factors beyond Age". The fourth chapter is on the basis of discussing the current legislative and social situation of age discrimination in employment in our country, and puts forward some suggestions on the legislation of our country from the macroscopic and microcosmic perspectives combined with the experience of the United States. Macroscopically: the age discrimination in employment should be regulated from the constitutional level, and the special anti-employment discrimination law and the anti-employment age discrimination law should be formulated. Micro-level: when making laws, we should give a clear definition of age discrimination in employment, set exceptions to protect the legitimate rights and interests of employers; Instead of simply applying the general proof rule of "who advocates who proves", it is necessary to clarify the respective burden of proof of the employer and the laborer in the case.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D971.2;DD912.5
【参考文献】
相关期刊论文 前1条
1 蒋忠原;;浅析对我国就业年龄歧视进行立法的必要性及国际经验[J];理论界;2011年09期
，本文编号：2437983
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