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But in fact, labor disputes did not resolve the issue of discrimination or infringement of equal employment rights. Therefore, the appeal of this judgment is reminiscent of the concept of “attached opinions” in case law (dicta), that is, those in A certain opinion written by the judge “by the way” when he wrote his judgment, which has nothing to do with the judgment of the case itself and the legal point of the case.

In contrast to the Xiaoma case, as a “equal employment rights dispute” case, the judge fell into the “routine” of labor disputes, focusing on the company’s employment autonomy. The analysis of whether discrimination is established appears to be a little careless. It seems that as long as the employer has a legitimate reason for terminating someone’s labor contract, a certain “differential treatment” can be rationalized. (Editor’s note: In other words, it is only a labor dispute case, and the judge also emphasized the issue of discrimination that has nothing to do with the case itself; in the case of equal employment rights dispute, the judge instead Stopped in the routine of labor disputes…)

This article attempts to start with the Xiao Ma case and analyze the legal issues reflected in this case.

This article will start from the definition of discrimination by the Xiaoma case court, pointing out that it still fell into a labor dispute when trying this “equal employment rights dispute” and refused to accept “mixed motive discrimination< /strong>” theory. (Editor’s note: Knock on the blackboard, this theory is very meaningful, not only transgender people, but many workers may encounter it, please be patient to read it)

“There is no legal purpose and reason in law, but based on some factors that have nothing to do with the job position, personal work ability or work performance, it is the behavior that violates equal rights measures such as different treatment, exclusion or preferential treatment.”

At first glance, the two are similar, and both believe that employment discrimination is based on factors that have nothing to do with work ability and position, and treat workers unfavorably. However, the court of second instance in the Xiaoma case has one more sentence:

“No legal purpose and reason…”

For this, we shouldHow to understand?

“Legal legal purpose and reason”, refers to those reasonable and differentiated treatments (that is, the differentiated treatment permitted by law) ? For example, for women’s protective regulations during pregnancy, childbirth, and breastfeeding, temporary special measures (special measures)?

Note: Temporary special measures refer to preferential treatment measures implemented by the government for specific disadvantaged groups within a certain period of time in order to accelerate the realization of equality. Such as the corrective action in American legal practice (affirmative action) and the positive action in European practice (positive action). It is called “preferential care” in our country’s legal practice. Quoted from Liu Xiaonan, editor-in-chief. Lecture Notes on Anti-Discrimination Law [D]. Beijing: Published by Law Press. 2016 Edition. Page 44

If you understand it this way, there is certainly no problem with this definition.

However, in combination with the overall logic and language of the second-instance judgment, and its maintenance of the first-instance judgment, we have to doubt another possibility—the “legal legal purpose and reason” here is the court’s The endorsement of the employer’s labor autonomy.

The original text of the second instance judgment

The original reasoning of the court of second instance is this:

“Equal employment rights protected Legal interests should be the legitimate employment rights of workers, rather than requiring employers to deal with workers who violate the company’s rules and regulations in the same way. That is, the employers have adopted different treatments for employees who have had similar serious negligence four times with Xiaoma. The method does not exceed the reasonable scope of the employer’s employment autonomy.”

This paragraph is in fact very similar to that of the first instance court, and it can be regarded as affirmation of the reasoning of the first instance court.

The original text of the judgment of the court of first instance is:

“The legal benefit of equal employment rights protection should be the legitimate employment rights of workers, but it does not require employers to do the same if they seriously violate company rules and regulations. Based on the employer’s employment autonomy, the When the conditions of the labor contract are fulfilled, the employer has the right to decide independently with whom to terminate the labor contract or not to terminate the contract.”

It can be seen that the courts of both instances held that as long as the employer’s behavior complies with the relevant provisions of the labor law, it is the right to use the labor autonomy; and the equal employment rights of the workers are in line with the relevant provisions of the labor law. Provision is limited.

For this case, Xiao Ma’s late behavior has met the conditions for the employer to unilaterally terminate the labor contract in Article 39 of the Labor Contract Law. Therefore, the employer’s unilateral termination of the labor contract with Xiao Ma belongs to the employer. The employer has the right to employ workers’ autonomy; and Xiao Ma has “seriously violated the rules and regulations of the employer” because of his late arrival, and his right to equal employment can no longer receive legal relief.

There is an inherent tension between the autonomy in employment of enterprises and the right to equal employment of employees, and the scope of exercise of the two rights is based on the employers granted by Article 39, 40 and 41 of the Labor Contract Law The right of unilateral termination is the boundary.

Unfortunately, this may be a misunderstanding.

2. What is “mixed motivation discrimination”?

The situation in the Xiao Ma case is reminiscent of “mixed motive discrimination” in the United States’ anti-discrimination theory and practice.

Mixed motive discrimination refers to the employer’s employment decision based on a mixed motive of legal non-discriminatory factors and illegal discriminatory factors. [1]

In the PricewaterhouseCoopers case, the U.S. Supreme Court established an analysis framework for mixed motive discrimination cases:

The plaintiff is only required to prove that discriminatory reasons or other bad reasons are part of the cause, or “motivating factor” (motivatingfactor). Once the plaintiff did this, all the burden of proof was transferred to the employer. Employers need to prove that they will make the same decision even if there is no discriminatory motive.

PricewaterhouseCoopers case: Plaintiff Ann Hopkins(Ann Hopkins) sues former employer PricewaterhouseCoopers(Price Waterhouse), an accounting firm, claimed that it was rejected by the company as a partner for two consecutive years because she did not conform to what a partner should look like and should Ideas of what to do. Since the employer could not prove that she would reject her partnership anyway, the court held that this constituted gender discrimination under Article 7 of the Civil Rights Act of 1964.

O’Connor(Justice O’Connor) In his coordinated opinion, the Justice O’Connor agreed to the verdict, but made stricter requirements on the plaintiff’s proof Requirements: The plaintiff can only transfer the burden of proof to the employer after providing direct evidence of the employer’s unallowable motive. The lower court accepted this modified version of the framework of Justice O’Connor.

In 1991, the United States revised Chapter VII of the Civil Rights Act (Title VII), improved the framework of the PwC case and further stipulated :

Once the plaintiff proves that the inadmissible cause is a motivating factor for the employer’s negative employment behavior, then “even if other factors also triggered the behavior” is sufficient to prove the existence of discrimination.

The employer’s defense, that is, whether there are discriminatory factors or not, the same decision will be made. It is no longer a defense that does not bear legal responsibility, but is only related to relief, and is used to reduce the possibility of the plaintiff seeking adequate damages Sex. (Editor’s note: In other words, the employer may reduce the amount of compensation through defense, but it is impossible to deny discrimination) p>

Of course, we don’t have to “learn from beauty” in everything, but the judicial practice of “mixed motive discrimination” in the United States undoubtedly brings us thinking-why is it so stipulated?

A simple answer is that this shows that equal employment rights have their own independent value. Whether there is a justification for the employer’s decision to dismiss is a question of relative independence.

In fact, the relevant Chinese laws understand this issue in the same way:

The “Labor Law” stipulates that “workers have the right to equal employment.” The “Employment Promotion Law” puts equal employment and self-employment in a very important position. One chapter regulates fair employment;

Based on the “Labor Law” and the “Employment Promotion Law”, the anti-discrimination litigation “tort law model” has been developed in judicial practice-“a civil lawsuit of personality tort with compensation for mental damage as the main claim. ”[2]

At the end of 2018, the Supreme People’s Court issued the “Equal Employment Rights” case, but it did not change the fact that the current legislation and judicial practice the essence of equal employment rights is still a personality right, and the determination of personality rights Infringement also has an independent constituent element. Whether the employer unilaterally terminates the labor contract with the employee in accordance with the labor law can only be used as the basis for determining and handling the labor legal relationship between the two, and cannot be used as a sole determination And the basis for handling the infringement legal relationship between the two.

Note: Personality right infringement belongs to general tort liability, and its constituent elements refer to various elements of general tort liability as necessary conditions. Quote from Zhang Xinbao: Tort Liability Law [D]. Beijing: Renmin University Press of China. 2016 Edition, page 27

On December 12, 2018, the Supreme People’s Court issued the “Notice of the Supreme People’s Court on Increasing the Causes of Civil Cases”, and decided to add the “General Personality Rights Disputes” under the third-level cases of “personality rights disputes”. The first category of the fourth-level case is the “equal employment right dispute.”

In fact, this problem has already appeared in our country’s judicial practice. In a case involving regional discrimination, the court of first instance had a wonderful discussion on the attributes of the Equal Employment Rights Personality Law:

“The right to equal employment is a basic right enjoyed by workers in accordance with the law. It has both the attributes of social rights and the attributes of private rights in civil law. The right to equal employment is a manifestation of their personal independence and freedom of willIn the civil law field, the violation of the right to equal employment is the core content of the general right of personality—personal dignity. The most important aspect of personal dignity is to require equal treatment. Employment discrimination often causes a serious sense of insult. Damage to mental health and even physical health. ”[3]

Three, return to the text of the current law

However, the problem has not been solved yet.

If the employer unilaterally terminates the labor contract with Xiao Ma, both because Xiao Ma is late, or because Xiao Ma performs gender reassignment surgery, can it be regarded as discrimination?

According to the theory of mixed motive discrimination in the United States, the answer is yes, but it can reduce the employer’s responsibility.

But the court of first instance apparently didn’t think so. It wrote in the judgment:

“To take a step back, even if the company thinks that the company has not arranged a new position for Xiao Ma, based on the consideration of Xiao Ma’s gender replacement factor, it cannot be considered that Xiao Ma’s employment rights have been violated”, because “the employer has the right to In the case of a serious violation of labor discipline and a decision to terminate the labor contract, it is not legally obliged to arrange a new position for the worker,…”

This argument of the court of first instance further established the definition of discrimination it identified. In this definition, clearly, there is no room for mixed motive discrimination.

The court of second instance did not directly respond to this point in its judgment, probably because the court of second instance was more cautious and unwilling to be involved in the complex theory of “mixed motive discrimination” on the issue of discrimination. Even the expert legal opinion submitted by the expert assistant in this case clearly analyzed and explained “mixed motive discrimination.”

Pony before the second trial

When our country’s current law lacks systematic anti-discrimination provisions, of course we should not ask the courts to conduct in-depth discussions on anti-discrimination theories, but since “the court cannot refuse the judgment”, can we find the answer in the current law?

Since employment discrimination is a tort law issue under my country’s current legal framework, we should return to the text of China’s current law, which involves the interpretation of civil law.

Civil law scholars pointed out that “If you want to determine the meaning of the law, you must first understand the words and sentences it uses.”

Although there are many methods of legal interpretation, “the textual meaning is the cornerstone of the interpretation, but the language used in the law is more suspicious, … it must be further clarified by other interpretation methods.” In other words, When interpreting the meaning of the law, we must start from the literal interpretation. When the literal interpretation still cannot determine the meaning of the law, we should use other legal interpretation methods.

The interpretation of the text means “in accordance with the textual meaning of the legal provisions, that is, the usual method of use, to explain the meaning of the law.” [4]

When we returned to the legislative text, we found that in fact, there are two modes of terms for all clauses related to the prohibition of gender discrimination in employment: One is “not discriminated against based on gender”, and the other is “no Gender-based(adverse treatment)“. [5]

From the perspective of literal interpretation, whether it is “not to be based on…” or “not to cause…”, it undoubtedly expresses a causal relationship. Causality may have one cause and one effect, multiple causes and one effect, one cause and multiple effects, and multiple causes and effects, but the current law does not make any other statements about this cause and effect.limit.

From the perspective of literal interpretation combined with the issues we are discussing, it should be said that regardless of whether the causality is one cause and one effect or multiple cause and effect, as long as gender is one of the causes, Need is the only reason, the main reason, and even the necessary reason, is covered by our anti-sex discrimination clause.

Of course, civil law scholars have also pointed out that “It is difficult to determine the true meaning of French if it is interpreted by the literal meaning alone. It is only the literal interpretation that sticks to the French language, and misunderstands or misinterprets the meaning of French.” [6] At this time, you need to use other legal interpretations to further clarify its meaning.

We might as well start from the perspective of legal interpretation, which refers to “exploring the value judgments made by legislators when making laws and the purpose of their intended practice“.

my country’s labor law system is based on the “Labor Law” and has successively promulgated a series of supporting regulations such as the “Labor Contract Law”, “Employment Promotion Law”, “Labor Dispute Mediation and Arbitration Law” and “Social Insurance Law”.

The “Labor Contract Law” and the “Employment Promotion Law” are the two pillars of the labor law system. The former is mainly to “regulate the behavior of employers and employees in signing and performing labor contracts“, Established a two-way choice of employment mechanism, framed the respective rights and obligations of labor and management; the latter’s legislative background is the state proposed to build a “harmonious society”, guaranteeing equal employment is one of its methods.

The Employment Promotion Law puts workers in a very important position in terms of self-employment, fair employment, and protection of workers’ equal employment rights.For the first time, workers directly file a lawsuit with the court The right to (Article 62), and confirm that the employer shall bear civil liability(Article 68).

Although the “Employment Promotion Law” mainly stipulates the government’s responsibility in promoting employment, and the protection of the equal employment rights of workers is relatively framework, it is different from the respective rights of labor and management stipulated in the Labor Contract Law. In contrast to the benefit measurement, the independence of equal employment rights clearly highlights its independent value.

Therefore, if only the employer can legally and unilaterally terminate the labor contract with the worker as stipulated in the “Labor Contract Law”, it does not consider the other damage caused to the worker by the employer’s simultaneous employment discrimination. , obviously runs counter to the original intention of the legislators of the Employment Promotion Law.

Of course, from the perspective of realist law, no matter how the law in books can be interpreted by scholars, the law is “a prediction of what the court will actually judge“.

And my country’s courts have not analyzed the specific legal provisions on which equal employment rights are based, the definition of discrimination is varied, and there is no in-depth understanding and discussion of mixed motive discrimination, making the legal basis of the Xiao Ma case very difficult. Expected…

(to be continued)

In the next article, the author will return to my country’s anti-discrimination judicial practice, and explore how mixed motive discrimination is encountered in my country’s “tort law model” anti-discrimination judicial practice Dilemma, this case constitutes the possibility of “discrimination on excuses” and the problem of proof. Finally, from the perspective of social acceptance, it is pointed out that the new concepts of “transgender” and “mixed motivation” such as “anti-common sense” will inevitably have an impact on social concepts, but the theoretical exploration and practice of anti-discrimination should not stop.

Reference materials

[1]Liu Xiaonan, editor-in-chief. The mechanism and principle of anti-discrimination in employment[D]. Beijing: Published by Law Press. 2013 Edition. Page 249 p>

[2]Yan Tian. The general theory of anti-discrimination law in employment: the construction and reflection of China and the United States[J]. Global Law Review. 2014 (06): 59 -79..

[3] Hangzhou Internet Court (2019) Zhejiang 0192 Minchu No. 6405 Civil Judgment

[4]Liang Huixing: Civil Law Hermeneutics[D]. Beijing: China University of Political Science and Law Press. 1995 edition. Pages 214 to 215

[5] For example, Article 13 of the “Labor Law” “It is not allowed to refuse to hire women or raise the employment standards for women on the basis of gender.” Article 13 of the Employment Promotion Law Article 27 is the same. Article 12 of the “Labor Law” stipulates that “no discrimination based on ethnicity, race, gender, or religious belief.” In addition to adding an additional word “etc.” to Article 3 of the “Employment Promotion Law”, it also stipulates that: , Race, gender, religious beliefs, etc. are discriminated against.”

[6] Yang Renshou: Methodology of Law. Beijing: China University of Political Science and Law Press [D]. 1995 edition. Page 102

This article is from WeChat official account:Orange Umbrella (ID: chengyusan666) author: Liu Mingke