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현려화(XUAN LIHUA)(玄丽,华,) 원광대학교 법학연구소 2018 圓光法學 Vol.34 No.1
女性劳动权主要指女性劳动者在整个劳动过程中享有的男女平等的劳动权利和根据其生理特点和孕育后代的社会与家庭责任而享有的与男性所不同的特殊权利。中国的《宪法》、《妇女权益保障法》等纲领性法规与《劳动法》、《就业促进法》、《女职工劳动保护规定》、《女职工禁忌劳动范围的规定》等具体法规,就是规范女性劳动权的法律。根据法律规定女性劳动者享有男女平等的就业、晋升、职业待遇等方面的权利之外,在经期、孕期、产期与哺乳期享有在劳动强度、劳动时间、产假及哺乳时间等方面的特殊保护。对女性劳动者在劳动强度、禁忌劳动范围、生产安全条件的具体规定也体现了社会对女性的关怀。目前男女劳动权方面的法律的平等与现实的平等还具有一定的差距。现实中还是存在就业机会、职业待遇、离职等方面的不平等,职场发生性骚扰,“四期”保护得不到落实等各种问题。为了真正实现男女劳动权平等和女性特殊劳动权益的保障,在改变滞后的立法理念的同时完善相关立法,使其具有可操作性。另外,国家应引入法律援助、公益诉讼、举证倒置与专门仲裁等多元化的解决纠纷机制实现男女平等的劳动权,满足追求美好生活的女性劳动者的愿望。 Labor rights of women mainly refer to female employees enjoying the labor rights of equality between men and women throughout the labor process, and the special rights different from those of men based on their physiological characteristics and the social and family responsibilities of the offspring. The laws and rules which regulate labor rights of women include, “Constitution of the People’s Republic of China”, “Law on the Protection of the Rights and Interests of Women”, “Labor Law”, “Employment Promotion Law”, “Rules on the Labor Protection of Female Employees,” and “Rules on Scope of Working Prohibition for Female Employees”, etc. In accordance with the law, female employees enjoy rights of equality between men and women in terms of employment, promotion, occupational treatment, etc., and enjoy special protection in terms of labor intensity, working hours, maternity leave and breastfeeding time during menstruation, pregnancy, maternity and lactation. Furthermore, the specific provisions on the labor intensity, scope of working prohibition, and production safety conditions for female employees also reflect the social concern for women. There is still a certain gap between the current law on equality and the reality of equality of men and women in labor rights In reality, there are still various problems such as employment opportunities, occupational treatment, resignation and other aspects of inequality, sexual harassment in the workplace, and the failure to implement the protection of “four periods”. In order to truly guarantee the equal labor rights of men and women and the special rights and interests of women, it is necessary to improve the relevant legislation while changing the lagging legislative concept and make it workable. In addition, in order to realize the equal labor right of men and women and to meet the desire of female employees who pursue a better life., the state should introduce various dispute resolving mechanisms such as legal aid, public interest litigation, reversal of evidence, special arbitration and etc.
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