【作者】 郭延军；

【导师】 何勤华；

【作者基本信息】 华东政法大学 ， 法律史， 2010， 博士

【摘要】 历史地看,美国女性就业权经历了从不被保护到被特别保护再到被平等保护的不同历史发展阶段,美国女性为寻求宪法和法律对其就业权的平等保护走过了艰难的历程。从美国殖民地时代一直到南北战争后的19世纪的下半叶,在“男女有别、男尊女卑”观念的主导下,女性的活动领域被限制在家庭,女性的第一要务被认为是家务而不是工作,美国女性的就业权不受法律的保护。在20世纪的上半叶,美国女性的就业权进入了法律调控的领域,立法对就业女性进行特别保护是这个时期女性就业权保护的主要特点,此时许多州都制定了规定女工最高工时、最低工资,禁止女性上夜班,限制女工职业领域等“保护性”立法。不过,这种只适用于女性、而不惠及男性的“保护性”立法实际上夸大了女性和男性身体能力上的差异,强调的是女性和男性社会功能的不同,是对女性的歧视而不是保护。自20世纪60年代开始,美国对女性就业权的保护进入平等保护时期。从立法史上看,美国女性就业权的平等保护是从州开始的,早在20世纪初就有少数州开始制定禁止就业中性别歧视的法律,但在联邦层面,美国女性就业权平等保护法律制度的构建是从20世纪60年代开始的, 1963年的《同工同酬法》是美国历史上第一部由联邦制定的禁止就业领域性别歧视的民权立法。在美国联邦法律体系中,女性就业权平等保护的法源可以划分为四个层次。第一层次是宪法及其宪法判例,第二层次是国会立法及其相关判例,第三层次是行政命令,第四层次是联邦规章。宪法第十四修正案和第五修正案虽然制定的时间比国会立法和总统行政命令要早,但是它们在平等保护女性权利方面发挥的作用却要晚于国会立法和总统行政命令,联邦最高法院直到1971年才在Reed v. Reed,404 U.S.71(1971)案中通过对宪法第十四修正案的解释使宪法成为女性就业权平等保护的重要渊源。联邦最高法院在Craig v. Boren, 429 U.S. 190 (1976)案中确立了对性别立法分类的中度审查标准。民权法第七章,11246号总统行政命令,平等就业机会委员会的《就业性别歧视指导意见》,劳动部、司法部、平等就业机会委员会、行政事务委员会联合发布的《统一雇员选择程序指导意见》等规范性法律文件明确规定了在就业领域禁止歧视的具体要求、歧视的法律责任和救济途径等内容。美国女性就业权平等保护要解决的主要问题是女性的就业机会不平等。造成女性就业机会不平等的雇佣实践概括起来有两类:一类是基于对女性的刻板成见而故意歧视女性,直接拒绝雇佣女性的雇佣实践,其具体表现是根据性别对工作分类,拒绝雇佣已婚女性;另一类是表面上中立的雇佣政策比如身高体重要求、体能测试等对女性和男性产生完全不同的影响,从而限制了女性的就业机会,这是一种间接性别歧视。雇佣中的直接性别歧视是1964年民权法第七章所明令禁止的,美国采取了各种具体的法律措施来消除雇佣中对女性的直接歧视。不仅如此,通过司法判例形成的有关差别对待的判断标准和举证规则也在就业性别歧视案中得到充分的运用,是识别和消除雇佣中直接性别歧视的重要法律方法。差别对待歧视的判断标准及其举证规则是在1973年联邦最高法院审理的McDonnell Douglas Corp. v. Green案中形成的。根据该案,差别对待歧视的构成要件是:1、原告属于法律保护的类型;2、原告申请雇主提供的工作,且具有符合这个工作的资格,但被拒绝录用;3、雇主有歧视的故意。差别对待歧视的举证责任由原告和雇主分担。原告要证明雇主的雇佣行为符合差别对待歧视的构成要件构成歧视,雇主要提出合法的、非歧视理由进行抗辩,合法的、非歧视理由可以是:1、明确的、合法的、与种族、信仰、性别、来源国无关的拒绝雇佣的理由;2、真实职业资格。间接性别歧视通过法院的解释也成为美国法律所禁止的雇佣实践,而通过司法判例形成的差别影响的判断标准及其举证规则是识别和消除雇佣中的间接性别歧视的重要法律方法。差别影响歧视的判断标准及其举证规则是在1971年联邦最高法院审理的Griggs v. Duke Power Co.案中提出的,后几经反复,最终在1991年民权法中得以确立。根据Griggs案和1991年民权法的规定,差别影响歧视的构成要件是:1、一个具体的雇佣政策,尽管表面上看起来是中立的,但无论是其效果还是运作都对被保护群体中的成员产生了不成比例的消极影响;2、原告属于法律保护的类型,且自己受到这个政策直接的不利影响。故意不是差别影响歧视的构成要件。雇主进行抗辩的合法理由是事业必要性。禁止差别对待和禁止差别影响构成了1964年民权法确立的不歧视原则的两大内容,它们贯彻到了从雇佣前的招聘广告到聘用的具体环节直至最后的雇佣结果的评价这整个过程。女性就业权的平等保护还要处理好女性的特殊生理现象对女性就业造成的不利影响,怀孕是其中最主要的问题。在美国,怀孕给就业女性所带来的特殊问题主要有两个,一个是怀孕女性被视为无劳动能力者被歧视,一个是胎儿保护与女性就业权的冲突。对这两个问题的解决,美国法律都坚持了不歧视原则,既明确禁止怀孕歧视,也否定了胎儿保护政策。美国法律并没有将怀孕和胎儿保护作为女性的特殊问题来对待,对于女性经期、孕期、产期、哺乳期女性、胎儿、婴儿的健康问题,美国法律将其留给女性自己处理,各州有关怀孕女性的产假、保障女性产后复职等制度是美国法律可以接受的非常有限的对就业女性的优待,这表明实现女性就业机会平等是美国女性就业权平等保护的宗旨。如何提高女性群体就业水平也是美国在保障女性就业权时想要解决的问题。长期积累的女性在就业领域的结构性不平等在相当长的时期内是很难通过旨在实现就业机会平等的禁止歧视规则得到彻底纠正的,为提高女性整体的就业水平,美国实施了积极行动计划。在美国,对就业女性是否需要实施积极行动、积极行动可以采用什么方式等一直以来都存在很大的争议。出于对反向歧视的警惕和两性就业利益的平衡,美国政府在对女性采取积极行动计划时还是非常节制的,积极行动被控制在一定的限度内。比较中美两国女性就业权平等保护的历程,美国一直走的是法制化的道路,而中国曾经在相当长的时期内依托的是政府推动的自上而下的男女平权运动和计划经济体制下“统包统配”的劳动用工制度,这种做法直到20世纪的80年代才开始有所改变。从效果看,历史证明美国的道路更加可靠。比较中美两国现行的女性就业权平等保护法律制度,两国各有特点,美国法律侧重于对女性就业机会的保护,而中国法律侧重于对就业女性的特别保护。然而,在体现机会平等的法律规范体系尚未建立的情况下,仅仅立足女性与男性的差别对就业女性进行特别保护不过是父爱似的关心罢了,只会强化社会对女性的歧视,无助于女性就业权的平等保护。因此,美国女性就业权平等保护中实现女性就业机会平等的法律制度很值得我国借鉴。更多还原

【Abstract】 Historically speaking, American female employment rights went through the different historical stages from the unprotected to special protection, then to equal protection. The American females underwent the hardships in order to seek the constitution and law to protect their equal employment rights. From the American colonial times to the second half of the 19th century after the civil war, under the guidance of the concept“males and females should be treated differently and males are superior to females”, the female activities were limited to the family and their most important thing were the housework instead of the job, the American female employment rights were not protected by law at all. In the first half of 20th century, the American female employment rights entered the field of legal regulation. The main characteristics of female employment rights protection during this time was the special protection of employment females by the legislation. At this time, there were“protection”legislations for women workers in many states such as the maximum working hours, the minimum wages, prohibiting the females from the night job and limiting the females working areas etc. However, in fact, such kind of“protection”legislations that were only applied to the females and not included the males exaggerated the difference between the females and the males in their bodies and emphasized the different social functions between the females and the males. These legislations were the discrimination against the females instead of protection. Since 1960s, female employment rights protection in America entered the period of equal protection.Viewed from the legislation history, the equal protection of American female employment rights began from the states. As early as the beginning of the 20th century, a few states began to make the law that prohibiting the sexual discrimination in the employment, but in the federal level, the legislation on the American female equal employment rights began from the 1960s. The Equal Pay Act of 1963 is the first federal civil legislation that prohibiting the sexual discrimination in employment in American history.In American federal legal system, the legal sources of equal protection of female employment rights can be classified into four levels. The first level is the constitution and the precedents of constitution; the second level is the federal legislation and the related precedents; the third level is the executive order and the fourth level is the federal regulation. Although the Fourteenth and the Fifth Amendment of constitution is earlier than the federal regulation and the executive order of the president, their roles in the equal protection of female rights are later than the federal regulation and the executive order of the president. It is not until 1971 did the federal supreme court make the constitution to be the important source of the equal protection of female employment rights by interpreting the Fourteenth Amendment of constitution in Reed v. Reed,404 U.S.71(1971). The federal supreme court set up the heightened standard of gender legislation classification in Craig v. Boren, 429 U.S. 190 (1976). The normative legal documents such as title VII of Civil Act, No 11246 of president’s executive order, the Guidelines On Discrimination Because Of Sex issued by the Equal Employment Committee, the Uniform Guidelines On Employee Selection Procedures (1978) jointly issued by Labor Department, Ministry of Justice, the Equal Employment Committee and Administrative Affairs Committee stipulate definitely the specific requirements of prohibiting discrimination in employment, the legal liabilities and remedies of the discrimination.The major problem in the equal protection of American female employment rights is the female unequal employment opportunities. To sum up, there are two types of employment practices that cause the female unequal employment opportunities. One type of the employment practices is the refusal of hiring the female directly because of intentional discrimination against the females based on the female stereotype. The main manifestations of this type are the classification of the job according to the gender and refusing to employ the married females. Another type of employment practices is the indirect sexual discrimination. Such kind of employment policies are the neutral on the surface such as the height, weight and physical conditions. However, the policies have totally different effects upon the males and females which result in the limitation of female employment opportunities.The direct sexual discrimination in employment is prohibited by title VII of the Civil Act (1964). America adopts many specific legal measures to eliminate the direct discrimination against the females in employment. Furthermore, the test standards and the rules of evidence related to the disparate treatment established through the precedents are fully applied in the cases of sexual discrimination in employment. These standards and rules are the important legal measures to identify and eliminate the direct sexual discrimination in employment. The test standards and the rules of evidence of disparate treatment discrimination were formed in McDonnell Douglas Corp. v. Green heard by the federal supreme court in 1973. According to this case, the requirements of the disparate treatment discrimination are: (1) that the plaintiff belongs to the type protected by law; (2) that the plaintiff applied and was qualified for a job for which the employer was seeking, but he was rejected; (3) that the employer has the intentional discrimination. The burden of proof of the disparate treatment discrimination shall be shared by the plaintiff and the employer. The plaintiff shall prove that the employment conducts of the employer meet the requirements of the disparate treatment discrimination and constitute the discrimination. The employer shall defend with legal and non-discrimination excuses. The legal and non-discrimination excuses maybe are: (1) definite, legal and refusal excuses unrelated to racial, belief, gender and country of origin. (2) bona fide occupational qualification. The indirect sexual discrimination is also the prohibited employment practices in American law by the court’s interpretation. The test standards and the rule of evidence of disparate impact formed by the precedents are the important legal measures to distinguish and eliminate the indirect sexual discrimination in employment. The test standards and its rule of evidence of disparate impact discrimination were put forward in Griggs v. Duke Power Co. heard by the federal supreme court in 1971, then changed several times and finally were established in the 1991 Civil Act. According to the case of Griggs and the stipulations of 1991 Civil Act, the requirements of the disparate impact discrimination are: (1) Although one specific employment policy is neutral on the surface, no matter its effect and application cause the unproportionate negative effects upon the members of the protected groups; (2) the plaintiff belongs to the type protected by law, and he was affected directly by this policy. Intention is not the necessary requirements of the disparate impact discrimination. The defense of the employer is the business necessity.Prohibiting the disparate treatment and prohibiting the disparate impact are the two main components of non-discrimination principle established in 1964 Civil Act. They are applied in the whole process from the employment advertisement before the employment to specific process of employment and the final evaluation of the employment results.The equal protection of female employment rights shall deal with the negative effects upon the female employment caused by the female special physiological phenomenon. The pregnancy is one of major problems. In US, there are two main special problems for the employment female caused by the pregnancy: one is that the pregnant female is regarded as incapacitated person and is discriminated. Another is the conflict between the protection of the fetus and the female employment rights. In solving these two problems, American law persists in the principle of non-discrimination. It prohibits the pregnancy discrimination definitely and also overrules the policies of fetus protection. American law does not treat the pregnancy and fetus protection as the special female issues. As for the issues such as the female menstrual period, pregnancy, confinement and the health problems of female, fetus and infant during their lactation period, the American law reserves these issues to be dealt with by the females themselves. The regulations in every state related to the female maternity leave and the female resuming their posts after their postpartum are the limited acceptable preferential treatments to the employment females. This shows that the realization of equality in female employment opportunities is the purpose of the equal protection of American female employment rights.How to promote the total female employment level is also the problem to be resolved in guaranteeing the female employment rights in America. The accumulated structured unequality in female employment is very difficult to correct thoroughly within a long duration by the regulations of prohibiting the discrimination which purposes are to realize the equality in employment opportunities. America carries out the affirmative action in order to promote the total female employment level. In US, there are very big disputes about whether the affirmative action should be carried out against the employment females and what kind of actions should be taken. Considering the alert against the reverse discrimination and the balances between the employment interests of two genders, the American government is very moderate when it carries out the affirmative actions against the females. The affirmative action is limited to the certain bounds.Compared the process of equal protection of American female employment rights with those of China, America adopted the legal ways at all times while China depended on equal movement between men and women from up to bottom advanced by the government and the labor and employment systems of unified allocation under the plan economy systems for a certain long period. Not until 1980s did the changes take place. Viewed from the effects, the history proves that the way of America is more reliable. Compared the current legal systems of equal protection of female employment rights in America and China, both of them have their own features. The American legislation lays special emphasis on the female employment opportunities while China’s legislation lays special emphasis on the special protection of the employment females. Under the circumstance that the legal systems reflecting the equal opportunities have not yet set up, the special protection based on the difference between the males and the females is only like the“father love”concerns. Such kind of protection only strengthens the discrimination against the females and does not help the equal protection of the female employment rights. Therefore, the legal systems of realizing the female employment opportunities in equal protection of American female employment rights are worth using for references for China.更多还原