| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 105 === It seems common for people to be judged by their appearances in employment. For example, one may be requested to fit in the standards set up by employers about appearances (include height, weight, looks, grooming, etc.) when finding the jobs or being at work. According to the reports about the cases of the applicants or employees being judged by their appearances in employment for the past few years, people often argued that the employers in the cases violated the right to equality and the anti-discrimination law such as Employment Service Act §5 I. By contrast, although there were a lot of similar cases occurred, people in the past seem not to hold the same argument about the violation of anti-discrimination law or the right to equality. Does it mean that the legislation of the anti-discrimination law “lead” the society? In this thesis, I historically research the cases in Taiwan from 1945 to the present about appearance-based discrimination in employment from the perspective of the constitutive approach developed from the study of law and society, and discuss the problem of inequality in the cases and the role of the anti-discrimination law.
First, it was common from 1945 for the applicants or employees to be requested to fit in the standards set up by employers about appearances which is similar when finding the jobs or being at work, especially in the employment or the workplace of military, civil servants, teaching staff or service industry. Moreover, the standards about appearances in the cases was not only overwhelmingly against female applicants or employees, but also different between male and female and sexualized. Although both from the perspective of formal equality approach and substantive equality approach, the employers in the cases of “judging people by appearances” in employment may cause discrimination of gender, disability and appearance, the existing anti-discrimination law before 1980 was rarely helpful. Furthermore, it appears that people didn’t notice the inequality in the cases at the time.
Second, after 1980, with the legislation and promotion of new anti-discrimination law such as Disabilities Welfare Act (legislated in 1980 and amended in 1990), Labor Standards Act (legislated in 1984), the draft of Equality Between Men and Women in Employment Act (submitted to the Legislative Yuan in 1990), and Employment Service Act (legislated in 1992), the situation became different. People have not only noticed the discrimination in the cases about “judging people by appearances” in employment, but also claimed the protection of equality through legal mobilization. However, the new anti-discrimination law were still incomplete for the cases, and there was not any discussion about appearance discrimination until the legislation of Employment Service Act §5, which forbids several kinds of discrimination in Employment like gender, disability, appearance, etc.
Third, although the legislation of Employment Service Act §5 could be of great significances for appearance-based discrimination, people seldom challenged the appearance-based discrimination according to Employment Service Act until the notable case occurred in 2001, which might be attributable to many reasons such as the simple design of the article, ineffective government propaganda and insufficient civil advocacy. After 2001, people used Employment Service Act and other anti-discrimination law as a weapon to fight the decision maked by employers or as a chip to negotiate with employers in more and more cases about appearance-based discrimination. However, the anti-discrimination law itself may also cause the inequality. Besides, there may be a gap between the claims from applicants or employees and the decision of competent authorities or courts. The real meaning of the anti-discrimination law has been practiced in the process of the legal mobilization and the interation between ordinary people and the authorities.
According to the analysis of the decisions in the cases about appearance-based discrimination in employment, first, the perspective of formal equality approach was predominantly adopted by the authorities and the courts. Second, it seems that the “appearance” protected in Employment Service Act §5 refers only to the appearance which is innate or immutable. Third, in the cases related to more than a kind of discrimination, the authorities and the courts might be inclined to recognize only one kind of discrimination. All of these may let lots of appearance-based discrimination in employment can’t be dealt by the anti-discrimination law.
In conclusion, the legal mobilization about appearance-based discrimination in employment done by ordinary people actually play the important role in the shaping of the related anti-discrimination law, which also play the important role in the shaping of society like how people think of judging applicants or employees by their appearances at the same time. Besides, in order to reach the purpose of the anti-discrimination law to ensure against inequality in employment, the opinions and decisions of the authorities and the courts in the cases about appearance-based discrimination should be reviewed through the perspective of substantive equality approach and intersectionality.
|
|---|
