China: On The Forefront Of Labor Law – The Comparison And Explanation Of Labor And Employment Law And Local Labor Regulation, No.164 Joking Or Employment Discrimination? In NNA

Last Updated: 16 November 2017
Article by Broad & Bright

经媒体报道,2017 年9 月22 日,北京小米科技有限责任公司(下称"小米公司")在郑 州大学召开招聘宣讲会,在会上一名自称创新部负责人的秦先生在发表讲话时声称:"如果 你是日语专业的学生,那你可以走了。或者我建议你们去从事电影事业!"在场的200 多名 学生听到此言论后都哄堂大笑。然而在场的一些日语专业学生愤而离场。之后一名日语专业 学生通过网络向小米公司创始人雷军写了一封要求小米公司道歉的公开信。2017 年9 月23 日,小米公司涉事员工秦先生公开发布了道歉信,并且称已向相关的学生们道歉。小米公司 也在官方微博上就此不当言论向公众致歉,并称已在公司内对涉嫌发表不当言论的员工处以 通报批评的处分。

在劳动法律师看来,上述事件中小米公司已经涉嫌就业歧视。2008 年1 月1 日颁布实 施、2015 年4 月修订的《中华人民共和国就业促进法》(下称"《就业促进法》")明确规定 "劳动者依法享有平等就业和自主择业的权利。劳动者就业,不因民族、种族、性别、宗教 信仰等不同而受歧视。""用人单位招用人员、职业中介机构从事职业中介活动,应当向劳动 者提供平等的就业机会和公平的就业条件,不得实施就业歧视。"

在日常生活中,会见到一些招聘公告中有类似的表述,如"男性优先""已婚已育优先", 甚至也有"谢绝**省份人员"的表述,这些表述显然都涉及就业歧视。不过,针对类似现象尚 缺乏具体的法律责任依据,虽然根据《就业促进法》第六十条规定"劳动行政部门应当对本 法实施情况进行监督检查,建立举报制度,受理对违反本法行为的举报,并及时予以核实、 处理。",但实务上很少见到类似的处理案例,也没有具体的处罚标准。但在当今社会网络 和自媒体如此发达,发布招聘公告的企业如有类似的不当言行,极有可能会对其企业形象造 成不利。

另外,还有一种长期存在的就业歧视现象,就是针对传染病病原携带者的歧视。比如针 对乙肝表面抗原阳性人员的拒绝录用。在《就业促进法》中明确规定,"用人单位招用人员, 不得以是传染病病原携带者为由拒绝录用。但是,经医学鉴定传染病病原携带者在治愈前或 者排除传染嫌疑前,不得从事法律、行政法规和国务院卫生行政部门规定禁止从事的易使传 染病扩散的工作。"此类案件往往是在已经向应聘者发出明确录用意向通知后,又因发现应 聘者的身体状况而撤回录用或拒绝录用。根据《就业促进法》的规定并结合相关的案例,应 聘者(劳动者)有权提起诉讼主张财产损害赔偿甚至精神损害赔偿。

作为企业,应注意对一些职位人员(例如人事、或代表公司对外发表公开言论的人员) 进行必要的法律和文化知识的培训,避免出现有损企业形象的言论,在招聘和用工过程中也 要进行谨慎合法的操作。必要时应向律师等专业人员进行咨询。

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