就业歧视案与宪法视域下的劳动权问题研究

Research on Right to Work from the Perspective of Employment Discrimination Cases and the Constitution

摘要: 当前就业形势日益严峻，各种就业歧视现象频发，引发了人们对平等就业问题的热烈讨论。但多是站在劳动法的角度去探讨，鲜有从宪法层面上考察公民的劳动权的落实问题。在宪法意义上，公民劳动权是一项基本人权，具有自由权和社会权的双重属性，其权利主体是公民，义务主体是国家。公民劳动权的基础性要素是平等就业权，现实中的就业歧视，实质是对公民劳动权中平等就业权的侵犯。我们可以从宪法层面、法律层面、行政层面给予救济。

Abstract: As the competition in the job market is fiercer and employment discrimination happens frequently, heated discussions on equal employment are sparked. However, most of these discussions are based on Labor Law. Few people view the implementation of right to work from the perspective of the Constitution. Under the Constitution, right to work, with citizens as its subject of rights and nations as its subject of obligation, is a fundamental human right which owns both the property of right of the person and social rights. The basic element of right to work is equal right to employment. Essentially, equal right to employment included in right to work is violated in cases of employment discrimination. Remedy can be offered from the level of the Constitution, legislation and administration.