從憲法平等權論私部門對前科者之就業歧視

Abstract

我國憲法第7條平等權保障內涵為實質平等，此應為職場上反歧視法建構之目的。我國前科者除了受到國家法令之限制而受有來自國家歧視，現行反歧視法未將「前科」身分明文納入反歧視法保護體系中，多數研究著重於前科者職業選擇自由限制違憲審查，對於私部門歧視研究較缺乏。故本文研究核心目的在以落實憲法第7條平等權保障視角，從司法與立法角度分析對抗前科者就業歧視困境之方法。 為達上述研究目的，美國從1970年起開始對抗前科者就業歧視困境累積許多經驗，本文參考美國法之經驗作為我國之啟發為研究方法，並將本文架構分成五章。第一章為緒論，第二章從我國現行反歧視法與司法院解釋，釐清前科身分所受國家與私部門歧視困境；第三章說明美國法對抗前科者就業歧視困境之經驗；第四章基於前二章發現，以平等權保障之視角，分別提出司法與立法建議；第五章則是結論。 本文於第二章發現司法院釋字第584、715、749號解釋，面對前科者國家法令限制時，未能關注於前科者受憲法第7條保障平等權之問題。就立法層面對私部門歧視管制僅侷限於「隱私」保障之角度，欠缺「反歧視」之平等權保障思維。 本文於第三章發現美國面臨前科就業歧視問題亦相當嚴重，受限於美國聯邦最高法院認為雇主不僱用前科者是理性決定後之結果，即令透過民權法第七編保障種族事由差別影響歧視理論，要求雇主必須個案衡量前科與職務關聯，對於前科者保護，仍屬不足。因此，有社會團體提出Ban the Box倡議，藉由禁止面試前查問前科紀錄方式，以達於歧視發生前避免歧視之目的，並有數個州法直接禁止對於前科者之歧視並明定例外考量前科紀錄之範圍。此等作法是反映考量出前科者未能就業所產生社會成本之「新理性」與「反壓迫」的實質平等之精神之具體展現。 本文於第四章提出前科者面對就業歧視之主因根源於標籤化，解決前科者就業歧視問題，應「去標籤化」肯認前科者於職場上工作能力和風險與一般人並無絕對本質不同，僅限於特定職務或工作內容與特性，與犯罪前科紀錄所涉罪名有直接關聯，足認有潛在風險將對雇主或第三人安全或權利造成損害例外為差別待遇。司法應參考上列標準，於國家歧視違憲審查納入實質平等觀點並提升至中度審查標準。立法層次上應落實「反壓迫」之精神，將前科事由明定原則禁止歧視，並規範前科紀錄查問制度，並依本文提出之原則，擬定個案考量前科紀錄衡量之因素。 本文於第五章總結憲法第7條，應確保前科者免於國家與私部門歧視。基於基本權對第三人效力之影響，大法官之決定對於普通法院和立法者運用憲法精神解決私部門歧視之態度有實質影響。本文研究希能踏出對於前科者就業歧視保護之第一步，至於前科紀錄塗銷管理制度、積極優惠措施，都是未來繼續研究之方向。

In Taiwan, many individuals that committed a crime and served their sentence receive a double sentence from society once they come out of prison: many of them have trouble finding work because they are simply not hired by the private sector, even though Article 7 of the Consitution of the Republic of China (R.O.C.). The Article 7 guarantees the equal rights of all citizens. The anti-discrimination law in the workplace seeks to further safeguard this constitutional right. However, nowadays, ex-convicts encounter serious discrimination from the public and private sector when they seek employment, and they are not protected under the framework of anti-discrimination laws in Taiwan. Even though there has been some research to how to protect ex-convicts against public employment discrimination, only few studies focus on discrimination by the private sector. Focusing on the protection of equal rights, this thesis intends offering solutions against private employment discrimination from a judicial and legislative perspective. To the above end, the methodology of this thesis is to make a comparison to the U.S. experience. The U.S. has dealt with issues of employment discrimination against ex-convicts for many decades. Hence, Chapter 2 of this thesis, firstly, analyzes the interpretations of Taiwan’s highest court, the Judicial Yuan, and Taiwan’s laws on discrimination in the workplace. Next, Chapter 3 explores U.S. anti-discrimination law and academic studies of fighting employment discrimination against citizens with criminal records. Following the findings in these chapters, Chapter 4 makes suggestions on how judicial and legislative branches can protect ex-convicts against private employment discrimination. Finally, Chapter 5 draws up the conclusions. The findings are as follows. First, the Constitutional Court’s reviews of cases of discrimination against ex-convicts do not take into account anti-discrimination. Moreover, Taiwan currently does not have laws that safeguard ex-convincts from discrimination by private employers. When assessing discrimination by the private sector, both the courts and the legislature only focus on the right to privacy, but do not consider the right to equality. The situation is not much different in the U.S. In the U.S. there are serious social problems of unemployment of ex-convicts. Even though the U.S. Supreme Court and laws, especially Title VII of the Civil Rights Act, have established comprehensive standards on anti-discrimination, ex-convicts are still excluded from protection. The reason is that the Supreme Court deems that employers, considering all risks and benefits, may have reasonable motives for refusing to hire individuals who committed a crime before. To reverse this phenomenon, some civil society groups push for the mechanism of “Ban the Box”, which prohibits an employer from searching and reviewing prospective employees’ criminal records before an interview. Moreover, some states have enacted laws to avoid unfairness in hiring ex-convicts. Both methods reflect the notions of substantive equality, considering anti-subordination, and “new rationality”, considering the social costs of unemployment. Based on above analysis, this thesis argues that the most important step to eliminate the discrimination of ex-convicts is removing the label which society attaches to them. In fact, from the perspective of labor skills, there is no difference between individuals with criminal records and those without such records. It is recommended that the Constitutional Court does not assume that ex-convicts are less capable of, or more dangerous to, performing a certain profession. Only when a priorly committed crime has substitutive relevance to the profession concerned, possibly enhancing dangers to other employees or third parties, there may be a reasonable interest to exclude an ex-convict. Based on this standard, the Constitutional Court should take into account the value of anti-oppression when interpreting the constitutional right to equality, employing intermediate scrutiny, to review laws which prohibit ex-convicts from certain professions. Only when the Court announces this equal value, the civil courts will incorporate the constitutional value of equality into anti-discrimination law regulating private discrimination. The the best way, however, to protect ex-convicts is to enact a special law that incorporates the mechanisms of “Ban the Box” and “new rationality”. The thesis concludes that the constitutional right to equality is to be applied to both public and private discrimination. The Constitutional Court plays an important role in leading the Legislative Yuan and lower courts to apply the value of equality in their decisions on discrimination by the private sector against ex-convicts. This is nevertheless only the first step to solve the social problem of tunemployment of ex-offenders. It is helpful to develop further mechanisms, such as erasing criminal records or granting preferential treatment, to help ex-convicts re-entering society. In this way, we can prevent that ex-convicts are punished the rest of their life for past crimes and give them a brighter future.