Liang (female) saw Huishijia Company’s advertisement for recruiting apprentices at Minghaoxuan Restaurant on "58 City" in June 2015. Liang had a Chinese-style cooker's third-level/skilled vocational qualification certificate, so she went to Minghao Hao Xuan Restaurant applied for the job and filled out the entry application form, but Ming Hao Xuan Restaurant did not conduct an interview on the grounds that the apprentices had already been recruited. In July 2015, Liang saw the job advertisement for the same position again on "58 City", so Liang went to Minghaoxuan Hotel to learn about the situation and recorded the situation. The front desk staff of the restaurant repeatedly stated that "kitchen apprentices don’t want women’s ", "There are no female workers in the kitchen, they are all men", "The company stipulates that the kitchen does not recruit female workers, even if they have a cook certificate", "If you don't hire female workers, you fill in the (form) is useless" and so on.
In August, Liang used the notary office to notarize the recruitment advertisement page on the website. The notarization showed that the recruitment subject was Huishijia Company, and the recruited position was garnish/dahe (recruiting 8 people), qualifications and other conditions It states "1, male, 18-25 years old; 2, physical ××, quick response; 3, practical and hard work, serious and responsible; 4, obey the leadership and management, friendly and kind...".
Mr. Liang consciously suffered from employment discrimination, which caused his depression and self-confidence to be frustrated, so he sued the court for Huishijia Company and Minghaoxuan Restaurant to publicly apologize in writing and compensate for economic losses and spiritual damages.
The focus of the dispute in this case is whether Huishijia Company and Minghaoxuan Restaurant have infringed on Liang’s right to equality in employment and whether they should bear the corresponding civil liability.
The court of first instance held that, in accordance with Articles 12 and 13 of the Labor Law of the People’s Republic of China, workers shall not be discriminated against because of their ethnicity, race, gender, or religious belief. Women enjoy equal employment rights with men. When hiring employees, except for types of jobs or positions that are not suitable for women as stipulated by the state, it is not allowed to refuse to hire women or raise the employment standards for women on the grounds of gender. In this case, Huishijia Company and Minghaoxuan Restaurant did not review whether Liang's ability meets the job requirements, regardless of whether Liang's ability meets the job requirements, but directly based on Liang's gender. Refusing Liang’s application for many times and refusing to give him equal interview opportunities has constituted discrimination and exclusion of female applicants, infringed on Liang’s right to equal employment, and has constituted gender discrimination against Liang, which belongs to the common Infringement should be jointly and severally liable for Liang's losses. The court of first instance ruled: 1. Huishijia Company and Minghaoxuan Restaurant shall jointly compensate Liang with 2,000 yuan for mental damage relief within 7 days from the effective date of the judgment; 2. Reject Liang's other claims.
After the verdict was pronounced in the first instance, Liang believed that the two defendants should make a written apology and dissatisfied with the judgment of the low spiritual comfort money, and then filed an appeal. At the same time, Huishijia Company and Minghaoxuan Restaurant also dissatisfied with the judgment, thinking that there is no gender discrimination. File an appeal.
The court of second instance held that according to Article 105 of the "General Principles of Civil Law of the People's Republic of China", women enjoy equal civil rights with men. According to Article 3 of the Employment Promotion Law of the People's Republic of China, workers have the right to equal employment and independent employment in accordance with the law. Employment of workers shall not be discriminated against because of their ethnicity, race, gender, religious beliefs, etc. The distinction, restriction, and exclusion of Huishijia Company and Minghaoxuan Restaurant only due to the gender of the recruiter is not legal and reasonable, and it damages the employment equality rights of female applicants, and should constitute gender discrimination in employment discrimination. And caused certain mental damage to Liang. Therefore, this court ordered Huishijia Company and Minghaoxuan Restaurant to make a written apology to Liang according to the above-mentioned laws and regulations, and to compensate the corresponding spiritual damages of 2,000 yuan.
Employers must strictly review the language of job advertisements, avoid restricting gender, ethnicity, religion, region, etc. in job advertisements, and make reasonable selections after comprehensive evaluation and assessment of candidates, not just limited to a rigid standard. At the same time, the employer should covertly screen and complete the recruitment work during the interview to avoid unnecessary follow-up troubles due to careless work during the recruitment process.
