论平等就业权的界定

平等就业权在西方的实践路线主要是禁止就业歧视和推行平等就业政策,受各国不同文化和"意思场域"的影响,平等就业权很难在西方语境中探究其直接而完整的概念支撑体系。在我国,当平等就业权研究还未达成共识的时候,创设制度层面的反就业歧视法制,无疑是非常困难的;保护平等就业权一般被简单地解读为禁止就业歧视。由于平等就业权具有保障生存权的积极功能和价值承载,回归其本来的面目,具有正本清源的作用;平等就业权的界定是重构其理论体系的基本前提。平等就业权准确界定的关键,是依法规制平等就业权与用工自主权之间的界限。

The Definition of the Right to Equal Employment

The practice of the right to equal employment in western countries is mainly anti-employment discrimination as well as the application of equal employment, influenced by cultural differences from diverse countries, it is difficult to search for an entire conception system for the term of right to equal employment in western languages. In China, the creation of legal system of anti-employment discrimination is faced with lots of obstacles while there is no agreement to the research of this term; the protection of the right to equal employment is simply defined as anti-employment discrimination. Since the right to equal employment is in charge of the protection of living right and to carry its values, the correct definition of this term concerns the realization of this task; meanwhile, the definition of the right to equal employment is the fundamental premise for the reconstruction of its theoretic system. The key point for the correct definition of the right to equal employment is to distinguish legally the right to equal employment from the right to liberate hiring.