China News Service, July 6. According to the official WeChat news of the Supreme People's Court, the Supreme People's Court recently released the 32nd batch of 7 guiding cases, mainly for the protection of laborers' legitimate rights and interests, for the people's courts at all levels to try similar cases. Reference.
Guiding Case No. 179 "Nie Meilan v. Beijing Linshi Brothers Culture Co., Ltd. for Confirmation of Labor Relations" clarifies that the employer and the laborer enter into an agreement in the name of "cooperative operation", but from the content of the rights and obligations of both parties agreed in the agreement and the actual performance of the agreement. The people's court should determine that the employer has a labor relationship with the laborer if it meets the labor relationship determination standards.
In this case, the substantive elements are used as the judgment standard, and the labor relationship between the two parties is determined by analyzing the nature of the contract content signed by the laborer and the employer, and the relationship of rights and obligations reflected in the actual performance of the contract, so as to prevent the employer from taking advantage of its dominant position to conclude other contracts. The method conceals the fact of employment, disguisedly excludes the statutory rights granted to laborers by national laws, and achieves the purpose of better protecting the legitimate rights and interests of laborers.
Guiding Case No. 180 "Sun Xianfeng v. Huai'an West District Human Resources Development Co., Ltd. Labor Contract Dispute Case" clarifies that when the people's court judges the legality of the employer's unilateral termination of the labor contract, it should use the employer's notice of termination to the employee. The content is the basis for determination; the people's court will not support the reasons that the employer has put forward during the trial of the case beyond the basis and reasons stated in the notice of termination of the labor contract.
This case refines the criteria for judging the legitimacy of the employer's unilateral termination of the labor contract, which helps guide the employer to abide by the principle of good faith, helps protect the legitimate rights and interests of workers, and has positive significance for building a harmonious labor relationship.
Guiding Case No. 181 "Zheng v. Honeywell Automation Controls (China) Co., Ltd. Labor Contract Dispute Case" clarifies that the management personnel of the employer did not take reasonable measures against the complaints of employees who were sexually harassed, or condoned sexual harassment, interfered In the case of sexual harassment investigations and other circumstances, if the employer terminates the labor contract on the grounds that the management personnel did not perform their duties and seriously violated the rules and regulations, and the management personnel claim that the termination of the labor contract is illegal, the people's court shall not support it.
This case has a certain demonstration and guiding significance for employers to reasonably construct a sexual harassment prevention and disposal mechanism after the implementation of the Civil Code, effectively improve the prevention awareness of all employees, and effectively prevent workplace sexual harassment.
Guiding Case No. 182 "Peng Yuxiang v. Nanjing Urban Construction Development (Group) Co., Ltd.'s Dispute over Claiming Labor Compensation", clarifies that the employer stipulates that laborers can obtain bonuses after completing certain performance, and apply for qualified laborers Those who issue bonuses are obliged to review.
If the employer refuses to perform the obligation of examination and approval without justifiable reasons, and the laborer claims to the people's court that the award conditions are fulfilled, and the employer should distribute the bonus in accordance with the regulations, the people's court shall support it.
This case has a positive effect on standardizing the employer's autonomy in employment, guiding the employer to uphold the principle of good faith in the performance of the labor contract, and establishing a harmonious, stable, and healthy labor relationship.
Guiding Case No. 183 "Fang Yue v. Zhongmei Luanthai Metropolitan Life Insurance Co., Ltd. Labor Contract Dispute Case" clarifies that although the employer's rules and regulations stipulate that employees who leave the company before the year-end bonus is issued cannot enjoy the year-end bonus, but the labor contract If the termination is not due to the employee's unilateral fault or voluntary resignation, and the employee meets the year-end bonus payment standards, if the employee claims that the employer should pay the year-end bonus, the people's court shall support it.
This case has guiding significance for the people's court to try labor dispute cases involving year-end bonuses, and prevent employers from infringing upon the legitimate rights and interests of workers in the name of rules and regulations.
Guiding Case No. 184, "Ma Xiaonan v. Beijing Sohu New Power Information Technology Co., Ltd.", clarifies that the employer and the employee have agreed in the non-compete clause, and apply for arbitration and initiate litigation due to disputes arising from the performance of the non-compete clause. If the period is not included in the non-compete period, it falls under the circumstance that "the employer exempts itself from its statutory responsibilities and excludes the rights of workers" as stipulated in the second item of the first paragraph of Article 26 of the Labor Contract Law, and shall be deemed invalid.
This case regulates issues related to non-compete and effectively protects workers' freedom to choose jobs.
Guiding Case No. 185 "Yan Jialin v. Zhejiang Sheraton Resort Co., Ltd. Disputes over Equal Employment Rights", clarifies that when an employer recruits employees, it is based on geographical, gender and other factors that are not necessarily related to the "internal requirements of the job". Discriminatory treatment for legitimate reasons constitutes employment discrimination and should bear corresponding legal responsibilities.
This case has guiding significance for the people's court to correctly identify employment discrimination in disputes over equal employment rights, and to accurately grasp the relationship between enterprises' autonomy in employment and workers' equal employment rights.
Law [2022] No. 167
Supreme People's Court
Notice on Issuing the 32nd Batch of Guiding Cases
The Higher People's Courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the People's Liberation Army, and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region:
After discussion and decision by the Judicial Committee of the Supreme People's Court, seven cases (Guiding Case No. 179-185), including Nie Meilan v. Beijing Linshi Brothers Culture Co., Ltd. for confirming labor relations, are hereby released as the 32nd batch of guiding cases for similar cases in the trial. Refer to the case.
Supreme People's Court
July 4, 2022
Guiding Case No. 179
Nie Meilan v. Beijing Lin's Brothers Culture Co., Ltd. in the confirmation of labor relations
(The Judicial Committee of the Supreme People's Court discussed and adopted it and released it on July 4, 2022)
Keywords civil / confirmation of labor relationship / cooperative operation / written labor contract
Referee Points
1. The qualified subject of the labor relationship concludes an agreement in the name of "cooperative operation", but the content of the rights and obligations of both parties and the actual performance of the agreement meet the standards for the identification of labor relationship. If the laborer claims that there is a labor relationship with the employer, the people's court shall should be supported.
2. The written agreement signed by the employer and the worker includes the work content, labor remuneration, labor contract period and other labor contract terms that comply with the provisions of Article 17 of the Labor Contract Law. The people's court shall not support the payment of double wages.
Relevant laws and regulations
Articles 10, 17 and 82 of the Labor Contract Law of the People's Republic of China
basic case
On April 8, 2016, Nie Meilan and Beijing Lin's Brothers Culture Co., Ltd. (hereinafter referred to as Lin's Brothers Company) signed the "Agreement on the Cooperation in Establishing a Tea Business Project", which reads: "Article 1: Both parties agree that Party A shall contribute capital. To invest in tea projects, appoint Party B as the manager of the tea business project, and Party B is responsible for the management and operation of the company. Article 2: After the project is launched, both parties shall jointly establish a company, and Party B can enjoy the management shares. Article 3: Benefit distribution: in Before the establishment of the company, Party B will receive remuneration in the form of basic salary and performance. After the establishment of the company, it will be distributed according to the shareholding ratio of both parties. Party B is responsible for management and operation, and the remuneration method is: basic salary + performance, reward + share dividend. Article 4 : During the operation process of the two parties, the unfinished matters shall be settled through friendly negotiation between the two parties. Article 5: This contract is in duplicate, and each shareholder of the company holds one copy.”
After the agreement was signed, Nie Meilan went to work on the project. The content of her work was to be responsible for the operation and management of the "Chinese Painting and Calligraphy" art tea house, mainly responsible for reception, tea sales and other work.
Lin Detang, the legal representative of the Lin Brothers Company, paid Nie Meilan the salary of the previous natural month through bank transfer on the 15th of each month according to the monthly basic salary of 10,000 yuan.
Nie Meilan's request for leave must be approved by Lin Detang, and the actual number of days of attendance affects the actual amount of wages.
On May 6, 2017, Lin Brothers notified Nie Meilan to terminate the cooperation agreement.
Nie Meilan actually worked until May 8, 2017.
Nie Meilan applied for labor arbitration, arguing that the two parties were in a labor relationship and asked Lin Brothers to pay twice the difference in wages for the unsigned written labor contract. Lin Brothers claimed that the two parties were in a cooperative relationship.
The Beijing Haidian District Labor and Personnel Dispute Arbitration Commission made the ruling of Jinghai Laorenzhongzi (2017) No. 9691: all the arbitration claims of Nie Meilan were rejected.
Nie Meilan refused to accept the arbitration award and filed a lawsuit with the People's Court of Haidian District, Beijing within the statutory time limit.
referee result
On April 17, 2018, the People's Court of Haidian District, Beijing made (2017) Jing 0108 Min Chu No. 45496 Civil Judgment: 1. Confirming that Lin's Brothers Company and Nie Meilan made the agreement between April 8, 2016 and May 8, 2017 There is a labor relationship; 2. Lin Brothers will pay Nie Meilan a salary of RMB 22,758.62 within 7 days after the judgment takes effect; 3. Lin Brothers will pay Nie Meilan within 7 days after the judgment takes effect During the period from May 8, 2016 to April 7, 2017, the labor contract was not signed, and the difference of double wages was 103,144.9 yuan; 4. The Lin Brothers Company paid Nie Meilan compensation of 27,711.51 yuan for illegal termination of the labor relationship within seven days after the judgment took effect; 5. Reject Nie Meilan's other claims.
Lin Brothers refused to accept the first-instance judgment and appealed.
On September 26, 2018, the Beijing No. 1 Intermediate People's Court issued a civil judgment (2018) Jing 01 Min Zhong No. 5911: 1. Uphold the first item of the civil judgment (2017) Jing 0108 Min Chu No. 45496 of the Beijing Haidian District People's Court , Items 2 and 4; 2. Revocation of items 3 and 5 of the Civil Judgment (2017) Jing 0108 Min Chu No. 45496 by the People's Court of Haidian District, Beijing; 3. Reject Nie Meilan's other claims.
Lin Brothers refused to accept the judgment of the second instance and applied to the Beijing Higher People's Court for a retrial.
On April 30, 2019, the Beijing Higher People's Court made a civil ruling (2019) Jingminshen No. 986: The retrial application of Lin Brothers was rejected.
Reason for referee
The court's effective judgment held that the "Agreement on Cooperative Establishment of Tea Business Projects" signed by the applicant Lin's Brothers Company and the respondent Nie Meilan was signed voluntarily and did not violate mandatory laws and regulations, and was a valid contract.
The determination of the nature of the contract should be based on the legal relationship involved in the content of the contract, that is, the rights and obligations established by both parties to the contract.
Article 1 of the agreement signed by the two parties clearly stipulates that Nie Meilan will be hired as the manager of the tea business project. The word "appointment" generally indicates that the parties intend to hire laborers to provide labor for her; Before or after the establishment of the target company set by both parties, Nie Meilan could receive "basic salary" and "performance" and other remunerations, which was obviously inconsistent with the income distribution in the cooperative operation.
The typical feature of a cooperative operation contract is joint investment and risk sharing. The contract in this case neither stipulates the proportion of Nie Meilan's contribution nor the sharing of risks, which is inconsistent with the cooperative operation contract.
Judging from the relevant evidence in this case, Nie Meilan accepted the management of the Lin Brothers Company, and reported the employees' attendance, payment allocation, expenses, sales, work plan, application for reserve funds, etc. on a monthly basis, and the wages paid were closely related to the number of days of attendance.
The relationship formed by the two parties in the process of performing the contract conforms to the dual characteristics of personality subordination and economic subordination in the labor contract.
Therefore, it was not inappropriate for the original judgment to find that there was a labor relationship between the applicant and the respondent.
The cooperation agreement signed by the two parties can also be regarded as a written labor contract. Although it lacks some necessary terms, it does not affect the agreed terms and validity, and can still play a role in fixing the labor relationship, rights and obligations of both parties. The verdict is correct.
On May 6, 2017, Lin Brothers issued the "Notice of Termination of Cooperation Agreement" to Nie Meilan, informing Nie Meilan to terminate the cooperation between the two parties, and expressed the intention to terminate the labor relationship between the two parties. Article 6 of the Regulations, in the case of labor dispute disputes, the employer shall bear the burden of proof for the labor disputes arising from decisions such as dismissal, dismissal, dismissal, and termination of the labor contract made by the employer. The relevant evidence of the reasons for the labor relationship shall bear the adverse consequences.
The judgment made by the court of second instance based on the specific circumstances of the case and relevant evidence was not inappropriate.
(Effective judges and judges: Chen Weihong, Fu Zhongliang, Peng Hongyun)
Guiding Case No. 180
Sun Xianfeng v. Huaian West District Human Resource Development Co., Ltd.
labor contract disputes
(The Judicial Committee of the Supreme People's Court discussed and adopted it and released it on July 4, 2022)
Keywords civil / labor contract / termination of labor contract / legality judgment
Referee Points
When judging the legality of the employer's unilateral termination of the labor contract, the people's court shall take the content of the termination notice issued by the employer to the employee as the basis for determination.
During the trial of the case, the employer exceeded the basis and reasons stated in the notice of termination of the labor contract, and separately proposed that the employee had other serious violations of the rules and regulations of the employer during the performance of the labor contract, and claimed that the conditions for termination of the labor contract were met accordingly. , the People's Court will not support it.
Relevant laws and regulations
Article 39 of the Labor Contract Law of the People's Republic of China
basic case
On July 1, 2016, Sun Xianfeng (Party B) signed a labor contract with Huaian West District Human Resources Development Co., Ltd. (hereinafter referred to as the West District Company) (Party A), stipulating that the labor contract period is from July 1, 2016 to 2019 Until June 30th; Party B's work place is Lianyungang, and is engaged in mail delivery and driver work; if Party B seriously violates Party A's labor discipline, rules and regulations, Party A can immediately terminate this contract without any financial compensation; Party A If the labor contract is cancelled or terminated by breach of contract, economic compensation or compensation shall be paid to Party B in accordance with the provisions of the law and the contract; Party A has formulated and adopted various rules and regulations in accordance with the law, such as the "Employee Handbook", "Reward and Penalty Management Regulations" ""Employee Attendance Management Regulations" and other documents are attached to this contract and have the same effect as this contract.
After that, Sun Xianfeng was in charge of the mail collection and delivery of SF Express in Duigougang Town, Guannan County, Jiangsu Province, according to the arrangement of the Western District Company.
Since August 25, 2016, the West District Company has settled wages to Sun Xianfeng's bank account every month. As of September 25, 2017, Sun Xianfeng's average salary in the first 12 months was 6,329.82 yuan.
On September 12, October 3, and October 16, 2017, Sun Xianfeng successively violated discipline, such as not wearing work clothes during working hours, swiping time cards on behalf of others, and leaving messages and insulting company supervisors on the public platform of the unit.
Afterwards, according to the "Reward and Punishment Management Regulations", the head of the employing department, the head of the suggestion department, the head of the labor union, and the head of the human resources department jointly signed and confirmed by the West District Company, and deducted 2 points and 10 points for Sun Xianfeng's above-mentioned violations of discipline. Points and a penalty of 10 points will be deducted, but it is difficult to determine the specific penalty point deduction time.
On October 17, 2017, Sun Xianfeng was ordered to suspend work by the employing department of his unit on the grounds that he had not handed in the operating funds during the performance of his duties in time.
The next day, Sun Xianfeng went to his unit to swipe his card for attendance, and it showed that the card information could not be entered.
On October 25, the West Zone Company issued a resignation certificate, stating that Sun Xianfeng officially resigned from the West Zone Company on October 21, 2017, and the formalities have been completed, and he has no labor relationship with the company from now on.
On October 30, the West District Company issued a notice of termination of the labor contract, stating that Sun Xianfeng had been absent from work for more than 3 days without any reason since October 20, 2017, without performing the leave procedures and without the approval of any leaders. According to the laws and regulations and the rules and regulations of the unit, the unit has decided to terminate the labor relationship with Sun Xianfeng from October 20, 2017, and it is limited to go through the relevant procedures before November 15, 2017.
Afterwards, Sun Xianfeng applied for arbitration to the Labor and Personnel Dispute Arbitration Committee of Guannan County, Jiangsu Province. After the arbitration ruling, Sun Xianfeng refused to accept it and sued to the court, requesting the Western District Company to pay a total of 68,500 yuan in compensation for the illegal termination of the labor contract.
During the trial of the case, the Western District Company pointed out that Sun Xianfeng had violated disciplines such as failing to wear work clothes as required, punching cards on behalf of others, abusing supervisors, and failing to hand in business payments in a timely manner in accordance with the company’s rules and regulations, which was a serious violation of the employer’s rules and regulations; since 2017 Since October 20, Sun Xianfeng has been absent from work for many days without any reason without completing the leave procedures and without approval. According to the law, he has terminated the labor relationship with Sun Xianfeng from October 20, 2017, which is in compliance with the law.
referee result
The People's Court of Guannan County, Jiangsu Province made a civil judgment (2018) Su 0724 Min Chu No. 2732 on November 15, 2018: 1. The defendant West District Company shall pay the plaintiff Sun Xianfeng an economic compensation amount of 18989.46 within ten days from the date when this judgment takes effect. Yuan.
2. To reject the plaintiff Sun Xianfeng's other claims.
The Western District Company refused to accept it and filed an appeal.
On April 22, 2019, the Intermediate People's Court of Lianyungang City, Jiangsu Province made a civil judgment (2019) Su 07 Min Zhong No. 658: the appeal was dismissed and the original judgment was upheld.
Reason for referee
The court’s effective judgment held that: the employer unilaterally rescinded the labor contract based on the employee’s behavior in violation of laws and disciplines and the labor contract, and the evaluation of its legitimacy should also be based on the facts, evidence and relevant legal provisions when the decision to terminate the labor contract was made. .
The notice of termination of the labor contract served by the employer to the employee is an expression of the employer's intention to terminate the labor contract to the employee, and is legally binding on the employer.
The notice of termination of the labor contract clearly states the basis and reasons for the termination of the labor contract. When the people's court hears the case of disputes over the termination of the labor contract, it shall review the facts, evidence and laws at the time of the decision. content and scope stated.
Otherwise, it will deviate from the content of the legality review of the labor contract termination disputed by the labor and management, causing the court judgment to be inconsistent with the parties’ claims and the focus of the dispute; at the same time, it will also violate the basic principle of good faith that civil subjects should uphold when engaging in civil activities. , resulting in an imbalance in the protection of the rights and interests of both employers and employees.
In this case, the labor contract signed by Sun Xianfeng and the West District Company was an expression of the true will of both parties, which was legal and valid.
As the management rules and regulations of the employer, the appendix of the labor contract, "Regulations on the Administration of Rewards and Punishments", does not violate the mandatory provisions of laws and administrative regulations, is legal and effective, and is binding on both parties.
According to the "Administrative Regulations on Rewards and Punishments", if an employee is absent from work for more than 3 consecutive days (inclusive), the company has the right to impose the fifth type of punishment responsibility, that is, to terminate the contract and never hire.
The notice of termination of the labor contract served by the Western District Company to Sun Xianfeng clearly stated that the reason for the termination of the labor contract was that Sun Xianfeng had been absent from work for more than 3 days without reason. The legality of the contract behavior, so the court's review of the legality of the termination of the labor contract by the West District Company should also be limited to the content stated in the notice of termination of the labor contract, and cannot go beyond the scope of the dispute.
Although the West District Company also pointed out in the court trial that Sun Xianfeng did not hand in the business payment in time, did not wear work clothes, swiped the time card on behalf of others, and left messages and insulted the company supervisor on the public platform of the company and other disciplinary violations during work, it is also a serious violation of the employer's rules and regulations. The company still has the right to terminate the labor contract, but according to the evidence on record and the statement of the West District Company, the West District Company did not propose to terminate the labor contract when it was known that Sun Xianfeng had the above-mentioned behavior, but took the initiative to reassign Sun Xianfeng to other jobs. , did not use the above behavior as the reason for the termination of the labor contract when it issued the notice of termination of the labor contract to Sun Xianfeng.
The court did not support the above claims made by the Western District Company during the litigation.
The West District Company terminated the labor contract on the grounds that Sun Xianfeng was absent from work for more than 3 days without reason, and should bear the burden of proof for the fact that Sun Xianfeng was absent from work for more than 3 days without reason.
However, the company in the West District only provided the employee attendance sheet issued by the unit as proof. The attendance sheet was not signed and confirmed by Sun Xianfeng, and Sun Xianfeng did not approve it. He believed that the leader of the unit arranged to stop the work and provided a video of the failure to swipe the card as proof.
Since Sun Xianfeng was scheduled to stop work during his work period, whether the West District Company notified Sun Xianfeng to report to the company, how to notify, and the time of notification, the West District Company did not provide evidence to prove it. Therefore, the fact that Sun Xianfeng was absent from work for more than 3 days without reason is unclear. He should bear the adverse consequences of failing to provide evidence. He terminated the labor contract on the grounds that Sun Xianfeng's absence from work violated the company's rules and regulations, which lacked factual basis and was an illegal termination of the labor contract.
(Effective judges and judges: Wang Xiaojiao, Li Ji, Dai Liguo)
Guiding Case No. 181
Zheng v. Honeywell Automation Controls (China)
Limited company labor contract dispute
(The Judicial Committee of the Supreme People's Court discussed and adopted it and released it on July 4, 2022)
Keywords civil / labor contract / termination of labor contract / sexual harassment / rules and regulations
Referee Points
The management personnel of the employer shall take reasonable measures to deal with the complaints of the employees who are sexually harassed.
Management personnel fail to take reasonable measures or condone sexual harassment behavior or interfere with investigations of sexual harassment behavior, etc., if the employer terminates the labor contract on the grounds that the management personnel fails to perform their duties and seriously violates the rules and regulations, and the management personnel claims that it is illegal to terminate the labor contract, the people The court did not support it.
Relevant laws and regulations
Article 39 of the Labor Contract Law of the People's Republic of China
basic case
Zheng joined Honeywell Automation Controls (China) Co., Ltd. (hereinafter referred to as Honeywell) in July 2012 as a channel sales manager.
Honeywell has established a workplace sexual harassment prevention training mechanism, and Zheng received relevant training.
Honeywell's Code of Business Conduct states that managers and supervisors "should ensure that subordinates can speak freely without fear of retaliation and that all concerns or concerns are resolved professionally and promptly" and that no retaliation is permitted.
The 2017 version of the Employee Handbook stipulates that sexual harassment of others, violation of the company's Code of Business Conduct, and making false statements during an internal company investigation are all disciplinary violations that will lead to immediate dismissal.
The above rules and regulations were discussed at the company's trade union communication meeting before implementation.
The labor contract signed by Zheng and Honeywell stipulates that Zheng confirms and agrees to the company's existing "Employee Handbook" and "Business Code of Conduct" and other rules and regulations as an integral part of this contract.
After the revision of the Employee Handbook, Zheng signed the confirmation letter again, saying that he had read, understood and willing to accept the contents of the 2017 Employee Handbook, and was willing to abide by the company's policies as a prerequisite for working in Honeywell.
On August 30, 2018, Zheng Mou thought that the relationship between his subordinate female employee Ren Mou and Zheng Mou's superior Deng Mou (married) was a bit stiff, so he asked Ren to talk to "relieve" the relationship between the two.
Zheng mentioned that he observed Deng saying a word to Ren yesterday, but Ren did not answer, and he even went to Ren to help smooth things out.
Ren mentioned that he had shown Zheng a screenshot of the sexual harassment WeChat record sent by his indirect superior Deng when he first joined the job. Zheng replied at that time, "I just don't want to get involved in this matter", "I don't want to answer you in the future." "I think it's a little strange, and I don't dare to ask."
During the conversation, Ren emphasized that Deng was sexually harassing him. Deng asked him to develop a relationship between men and women, and continued to harass him after he refused. Zheng should not blame him for ignoring Deng, nor should he come for Deng. Hit it.
Zheng Mou said, "If you work like this, it will make me sad." "The more you hold it, the more he thinks what I will do to you." "He is so direct. Then chat."
Later, in November 2018, Zheng proposed to Honeywell's personnel department to terminate the labor contract with Ren on the grounds that Ren did not fit in with others, but failed to explain the reasonable basis for rescinding the labor contract.
The personnel department asked Ren to understand the situation.
Ren informed the personnel department that he was harassed by his indirect superior, Deng, and that Zheng matched him with Deng intentionally or unintentionally, and he was retaliated against for refusing to harass.
Honeywell is investigating.
On January 15, 2019, Honeywell investigated Zheng and made a transcript of the investigation.
Zheng did not sign the investigation record, but made many changes to his responses to the company's inquiries recorded in the record.
Zheng did not make any amendments to the "no" response recorded in the investigation records of the female employee who reported that Deng had said some inappropriate things to her and sexually harassed her.
On January 31, 2019, Honeywell issued a "Unilateral Termination Letter", claiming that Zheng failed to perform his duties as a manager and did not take any measures to help his subordinates stop being harassed by indirect superiors after he reported that he was harassed by an indirect superior. The subordinate retaliated and terminated the labor contract with Zheng on the grounds of making false statements about the above facts during the investigation.
On July 22, 2019, Zheng applied for arbitration to the Shanghai Labor Dispute Arbitration Commission, requesting Honeywell to pay 368,130 yuan in compensation for the illegal termination of the labor contract.
The request was not supported by an arbitral award.
Zheng refused to accept and sued to the Shanghai Pudong New Area People's Court with the same request.
referee result
On November 30, 2020, the People's Court of Shanghai Pudong New Area rendered (2020) Hu 0115 Min Chu No. 10454 Civil Judgment: Dismiss Zheng's claim.
Zheng refused to accept the first-instance verdict and filed an appeal.
On April 22, 2021, the Shanghai No. 1 Intermediate People's Court made a civil judgment (2021) Hu 01 Min Zhong No. 2032: the appeal was dismissed and the original judgment was upheld.
Reason for referee
The effective judgment of the court held that the focus of the dispute in this case was: 1. Whether the Employee Handbook and the Code of Business Conduct, based on which Honeywell rescinded Zheng’s labor contract, had any binding force on Zheng; Serious disciplinary violation of the termination of the labor contract.
Regarding dispute focus 1, whether the Employee Handbook and the Code of Business Conduct, based on which Honeywell rescinded Zheng's labor contract, were binding on Zheng.
The evidence in the case shows that the 2017 version of Honeywell's "Employee Handbook" and "Business Code of Conduct" that Zheng held objections were discussed in Honeywell's trade union communication meetings in September 2017 and December 2014, respectively.
The labor contract signed by Zheng and Honeywell clearly stipulates that the Employee Handbook and the Code of Business Conduct are part of the labor contract, and Zheng has read, understood and accepted the above systems.
After the revision of the "Employee Handbook", Zheng also signed the confirmation letter again, confirming that he has read, understood and willing to accept the 2017 version of the "Employee Handbook", and is willing to abide by the company's policies as a prerequisite for working in Honeywell.
In this case, Honeywell's Employee Handbook and Code of Business Conduct shall be binding on Zheng.
Regarding the second point of contention, whether Zheng has serious disciplinary violations sufficient to terminate the labor contract.
One, the evidence in the case shows that Honeywell has established a workplace sexual harassment prevention training mechanism, and Zheng has also received relevant training.
Honeywell's "Code of Business Conduct" requires managers, supervisors and other management personnel to professionally and promptly help resolve concerns or issues raised by subordinates, and not to retaliate.
Honeywell's 2017 Employee Handbook also included violations of the company's Code of Business Conduct as a category of serious disciplinary offenses that could result in immediate dismissal.
Although Zheng claimed that the relevant female employees did not provide concrete evidence of being harassed, and that he could not judge the authenticity, right or wrong of the harassment, but from the recording of Zheng's conversation on August 30, 2018, he told the female employees when they first joined the company. Judging from the comments of "I think it's a little weird, I don't dare to ask" and "I just don't want to get involved in this matter" in the screenshot of WeChat he showed, Zheng himself does not think that the relevant WeChat content is a normal communication between colleagues. And when Zheng Mou repeatedly emphasized that the indirect superiors had been harassing her, he did not see Zheng Mou actively responding to help solve it, but instead said, "He is so direct, if it were me, I would approach you first, touch it, and then chat." .
All actions are to actively promote the development of improper relations between their subordinates and their superiors.
Zheng's behavior is obviously contrary to his duties as the head of Honeywell's department, and the content of his reply also violates public order and good morals.
In addition, according to Zheng's self-report, he should have clearly understood the reasons for the bad relationship between the relevant female employees and their indirect superiors after the conversation on August 30, 2018, but Zheng not only did not take active measures, but believed that the relevant female employees were improperly handled.
After Ren clearly expressed his resistance to Deng's sexual harassment, Zheng proposed to the HR manager in mid-November 2018 that Ren was not a gregarious personality, and hoped that the company could terminate the labor contract with Ren. Honeywell argued that Zheng It is also a reasonable inference that a certain retaliation against the relevant female employees.
Second, Honeywell's 2017 Employee Handbook clearly stipulates that making false statements in the company's internal investigations is a serious disciplinary violation that will lead to immediate dismissal.
The January 15, 2019 investigation transcript provided by Honeywell showed that Zheng made false statements during the investigation.
Although Zheng claimed that the investigation record was not recorded in accordance with his stated contents and that he was not allowed to modify many contents, this claim contradicted the fact that Zheng’s answers to many questions in the investigation record had been revised. Not accepted.
The investigation records can be used as the basis for determining that Zheng has made false statements.
综上，郑某提出的各项上诉理由难以成为其上诉主张成立的依据。霍尼韦尔公司主张郑某存在严重违纪行为，依据充分，不构成违法解除劳动合同。对郑某要求霍尼韦尔公司支付违法解除劳动合同赔偿金368130元的上诉请求，不予支持。
(生效裁判审判人员：孙少君、韩东红、徐焰)
指导案例182号
彭宇翔诉南京市城市建设开发(集团)有限责任公司
追索劳动报酬纠纷案
(最高人民法院审判委员会讨论通过2022年7月4日发布)
关键词 民事/追索劳动报酬/奖金/审批义务
裁判要点
用人单位规定劳动者在完成一定绩效后可以获得奖金，其无正当理由拒绝履行审批义务，符合奖励条件的劳动者主张获奖条件成就，用人单位应当按照规定发放奖金的，人民法院应予支持。
相关法条
《中华人民共和国劳动法》第4条、《中华人民共和国劳动合同法》第3条
基本案情
南京市城市建设开发(集团)有限责任公司(以下简称城开公司)于2016年8月制定《南京城开集团关于引进投资项目的奖励暂行办法》(以下简称《奖励办法》)，规定成功引进商品房项目的，城开公司将综合考虑项目规模、年化平均利润值合并表等综合因素，以项目审定的预期利润或收益为奖励基数，按照0.1%-0.5%确定奖励总额。该奖励由投资开发部拟定各部门或其他人员的具体奖励构成后提出申请，经集团领导审议、审批后发放。2017年2月，彭宇翔入职城开公司担任投资开发部经理。2017年6月，投资开发部形成《会议纪要》，确定部门内部的奖励分配方案为总经理占部门奖金的75%、其余项目参与人员占部门奖金的25%。
彭宇翔履职期间，其所主导的投资开发部成功引进无锡红梅新天地、扬州GZ051地块、如皋约克小镇、徐州焦庄、高邮鸿基万和城、徐州彭城机械六项目，后针对上述六项目投资开发部先后向城开公司提交了六份奖励申请。
直至彭宇翔自城开公司离职，城开公司未发放上述奖励。彭宇翔经劳动仲裁程序后，于法定期限内诉至法院，要求城开公司支付奖励1689083元。
案件审理过程中，城开公司认可案涉六项目初步符合《奖励办法》规定的受奖条件，但以无锡等三项目的奖励总额虽经审批但具体的奖金分配明细未经审批，及徐州等三项目的奖励申请未经审批为由，主张彭宇翔要求其支付奖金的请求不能成立。对于法院“如彭宇翔现阶段就上述项目继续提出奖励申请，城开公司是否启动审核程序”的询问，城开公司明确表示拒绝，并表示此后也不会再启动六项目的审批程序。此外，城开公司还主张，彭宇翔在无锡红梅新天地项目、如皋约克小镇项目中存在严重失职行为，二项目存在严重亏损，城开公司已就拿地业绩突出向彭宇翔发放过奖励，但均未提交充分的证据予以证明。
裁判结果
南京市秦淮区人民法院于2018年9月11日作出(2018)苏0104民初6032号民事判决：驳回彭宇翔的诉讼请求。彭宇翔不服，提起上诉。江苏省南京市中级人民法院于2020年1月3日作出(2018)苏01民终10066号民事判决：一、撤销南京市秦淮区人民法院(2018)苏0104民初6032号民事判决；二、城开公司于本判决生效之日起十五日内支付彭宇翔奖励1259564.4元。
裁判理由
法院生效裁判认为：本案争议焦点为城开公司应否依据《奖励办法》向彭宇翔所在的投资开发部发放无锡红梅新天地等六项目奖励。
首先，从《奖励办法》设置的奖励对象来看，投资开发部以引进项目为主要职责，且在城开公司引进各类项目中起主导作用，故其系该文适格的被奖主体；从《奖励办法》设置的奖励条件来看，投资开发部已成功为城开公司引进符合城开公司战略发展目标的无锡红梅新天地、扬州GZ051地块、如皋约克小镇、徐州焦庄、高邮鸿基万和城、徐州彭城机械六项目，符合该文规定的受奖条件。故就案涉六项目而言，彭宇翔所在的投资开发部形式上已满足用人单位规定的奖励申领条件。城开公司不同意发放相应的奖励，应当说明理由并对此举证证明。但本案中城开公司无法证明无锡红梅新天地项目、如皋约克小镇项目存在亏损，也不能证明彭宇翔在二项目中确实存在失职行为，其关于彭宇翔不应重复获奖的主张亦因欠缺相应依据而无法成立。故而，城开公司主张彭宇翔所在的投资开发部实质不符合依据《奖励办法》获得奖励的理由法院不予采纳。
其次，案涉六项目奖励申请未经审核或审批程序尚未完成，不能成为城开公司拒绝支付彭宇翔项目奖金的理由。城开公司作为奖金的设立者，有权设定相应的考核标准、考核或审批流程。其中，考核标准系员工能否获奖的实质性评价因素，考核流程则属于城开公司为实现其考核权所设置的程序性流程。在无特殊规定的前提下，因流程本身并不涉及奖励评判标准，故而是否经过审批流程不能成为员工能否获得奖金的实质评价要素。城开公司也不应以六项目的审批流程未启动或未完成为由，试图阻却彭宇翔获取奖金的实体权利的实现。此外，对劳动者的奖励申请进行实体审批，不仅是用人单位的权利，也是用人单位的义务。本案中，《奖励办法》所设立的奖励系城开公司为鼓励员工进行创造性劳动所承诺给员工的超额劳动报酬，其性质上属于《国家统计局关于工资总额组成的规定》第7条规定中的“其他奖金”，此时《奖励办法》不仅应视为城开公司基于用工自主权而对员工行使的单方激励行为，还应视为城开公司与包括彭宇翔在内的不特定员工就该项奖励的获取形成的约定。现彭宇翔通过努力达到《奖励办法》所设奖励的获取条件，其向城开公司提出申请要求兑现该超额劳动报酬，无论是基于诚实信用原则，还是基于按劳取酬原则，城开公司皆有义务启动审核程序对该奖励申请进行核查，以确定彭宇翔关于奖金的权利能否实现。如城开公司拒绝审核，应说明合理理由。本案中，城开公司关于彭宇翔存在失职行为及案涉项目存在亏损的主张因欠缺事实依据不能成立，该公司也不能对不予审核的行为作出合理解释，其拒绝履行审批义务的行为已损害彭宇翔的合法权益，对此应承担相应的不利后果。
综上，法院认定案涉六项目奖励的条件成就，城开公司应当依据《奖励办法》向彭宇翔所在的投资开发部发放奖励。
(生效裁判审判人员：冯驰、吴晓静、陆红霞)
指导案例183号
房玥诉中美联泰大都会人寿保险有限公司
劳动合同纠纷案
(最高人民法院审判委员会讨论通过2022年7月4日发布)
关键词 民事/劳动合同/离职/年终奖
裁判要点
年终奖发放前离职的劳动者主张用人单位支付年终奖的，人民法院应当结合劳动者的离职原因、离职时间、工作表现以及对单位的贡献程度等因素进行综合考量。用人单位的规章制度规定年终奖发放前离职的劳动者不能享有年终奖，但劳动合同的解除非因劳动者单方过失或主动辞职所导致，且劳动者已经完成年度工作任务，用人单位不能证明劳动者的工作业绩及表现不符合年终奖发放标准，年终奖发放前离职的劳动者主张用人单位支付年终奖的，人民法院应予支持。
相关法条
《中华人民共共和国劳动合同法》第40条
基本案情
房玥于2011年1月至中美联泰大都会人寿保险有限公司(以下简称大都会公司)工作，双方之间签订的最后一份劳动合同履行日期为2015年7月1日至2017年6月30日，约定房玥担任战略部高级经理一职。2017年10月，大都会公司对其组织架构进行调整，决定撤销战略部，房玥所任职的岗位因此被取消。双方就变更劳动合同等事宜展开了近两个月的协商，未果。12月29日，大都会公司以客观情况发生重大变化、双方未能就变更劳动合同协商达成一致，向房玥发出《解除劳动合同通知书》。房玥对解除决定不服，经劳动仲裁程序后起诉要求恢复与大都会公司之间的劳动关系并诉求2017年8月-12月未签劳动合同二倍工资差额、2017年度奖金等。大都会公司《员工手册》规定：年终奖金根据公司政策，按公司业绩、员工表现计发，前提是该员工在当年度10月1日前已入职，若员工在奖金发放月或之前离职，则不能享有。据查，大都会公司每年度年终奖会在次年3月份左右发放。
裁判结果
上海市黄浦区人民法院于2018年10月29日作出(2018)沪0101民初10726号民事判决：一、大都会公司于判决生效之日起七日内向原告房玥支付2017年8月-12月期间未签劳动合同双倍工资差额人民币192500元；二、房玥的其他诉讼请求均不予支持。房玥不服，上诉至上海市第二中级人民法院。上海市第二中级人民法院于2019年3月4日作出(2018)沪02民终11292号民事判决：一、维持上海市黄浦区人民法院(2018)沪0101民初10726号民事判决第一项；二、撤销上海市黄浦区人民法院(2018)沪0101民初10726号民事判决第二项；三、大都会公司于判决生效之日起七日内支付上诉人房玥2017年度年终奖税前人民币138600元；四、房玥的其他请求不予支持。
裁判理由
法院生效裁判认为：本案的争议焦点系用人单位以客观情况发生重大变化为依据解除劳动合同，导致劳动者不符合员工手册规定的年终奖发放条件时，劳动者是否可以获得相应的年终奖。对此，一审法院认为，大都会公司的《员工手册》明确规定了奖金发放情形，房玥在大都会公司发放2017年度奖金之前已经离职，不符合奖金发放情形，故对房玥要求2017年度奖金之请求不予支持。二审法院经过审理后认为，现行法律法规并没有强制规定年终奖应如何发放，用人单位有权根据本单位的经营状况、员工的业绩表现等，自主确定奖金发放与否、发放条件及发放标准，但是用人单位制定的发放规则仍应遵循公平合理原则，对于在年终奖发放之前已经离职的劳动者可否获得年终奖，应当结合劳动者离职的原因、时间、工作表现和对单位的贡献程度等多方面因素综合考量。本案中，大都会公司对其组织架构进行调整，双方未能就劳动合同的变更达成一致，导致劳动合同被解除。房玥在大都会公司工作至2017年12月29日，此后两日系双休日，表明房玥在2017年度已在大都会公司工作满一年；在大都会公司未举证房玥的2017年度工作业绩、表现等方面不符合规定的情况下，可以认定房玥在该年度为大都会公司付出了一整年的劳动且正常履行了职责，为大都会公司做出了应有的贡献。基于上述理由，大都会公司关于房玥在年终奖发放月之前已离职而不能享有该笔奖金的主张缺乏合理性。故对房玥诉求大都会公司支付2017年度年终奖，应予支持。
(生效裁判审判人员：郭征海、谢亚琳、易苏苏)
指导案例184号
马筱楠诉北京搜狐新动力信息技术有限公司
竞业限制纠纷案
(最高人民法院审判委员会讨论通过2022年7月4日发布)
关键词 民事/竞业限制/期限/约定无效
裁判要点
用人单位与劳动者在竞业限制条款中约定，因履行竞业限制条款发生争议申请仲裁和提起诉讼的期间不计入竞业限制期限的，属于劳动合同法第二十六条第一款第二项规定的“用人单位免除自己的法定责任、排除劳动者权利”的情形，应当认定为无效。
相关法条
《中华人民共和国劳动合同法》第23条第2款、第24条、第26条第1款
基本案情
马筱楠于2005年9月28日入职北京搜狐新动力信息技术有限公司(以下简称搜狐新动力公司)，双方最后一份劳动合同期限自2014年2月1日起至2017年2月28日止，马筱楠担任高级总监。2014年2月1日，搜狐新动力公司(甲方)与马筱楠(乙方)签订《不竞争协议》，其中第3.3款约定：“......，竞业限制期限从乙方离职之日开始计算，最长不超过12个月，具体的月数根据甲方向乙方实际支付的竞业限制补偿费计算得出。但如因履行本协议发生争议而提起仲裁或诉讼时，则上述竞业限制期限应将仲裁和诉讼的审理期限扣除；即乙方应履行竞业限制义务的期限，在扣除仲裁和诉讼审理的期限后，不应短于上述约定的竞业限制月数。”2017年2月28日劳动合同到期，双方劳动关系终止。2017年3月24日，搜狐新动力公司向马筱楠发出《关于要求履行竞业限制义务和领取竞业限制经济补偿费的告知函》，要求其遵守《不竞争协议》，全面并适当履行竞业限制义务。马筱楠自搜狐新动力公司离职后，于2017年3月中旬与优酷公司开展合作关系，后于2017年4月底离开优酷公司，违反了《不竞争协议》。搜狐新动力公司以要求确认马筱楠违反竞业限制义务并双倍返还竞业限制补偿金、继续履行竞业限制义务、赔偿损失并支付律师费为由向北京市劳动人事争议仲裁委员会申请仲裁，仲裁委员会作出京劳人仲字〔2017〕第339号裁决：一、马筱楠一次性双倍返还搜狐新动力公司2017年3月、4月竞业限制补偿金共计177900元；二、马筱楠继续履行对搜狐新动力公司的竞业限制义务；三、驳回搜狐新动力公司的其他仲裁请求。马筱楠不服，于法定期限内向北京市海淀区人民法院提起诉讼。
裁判结果
北京市海淀区人民法院于2018年3月15日作出(2017)京0108民初45728号民事判决：一、马筱楠于判决生效之日起七日内向搜狐新动力公司双倍返还2017年3月、4月竞业限制补偿金共计177892元；二、确认马筱楠无需继续履行对搜狐新动力公司的竞业限制义务。搜狐新动力公司不服一审判决，提起上诉。北京市第一中级人民法院于2018年8月22日作出(2018)京01民终5826号民事判决：驳回上诉，维持原判。
裁判理由
法院生效裁判认为：本案争议焦点为《不竞争协议》第3.3款约定的竞业限制期限的法律适用问题。搜狐新动力公司上诉主张该协议第3.3款约定有效，马筱楠的竞业限制期限为本案仲裁和诉讼的实际审理期限加上12个月，以实际发生时间为准且不超过二年，但本院对其该项主张不予采信。
一、竞业限制协议的审查
法律虽然允许用人单位可以与劳动者约定竞业限制义务，但同时对双方约定竞业限制义务的内容作出了强制性规定，即以效力性规范的方式对竞业限制义务所适用的人员范围、竞业领域、限制期限均作出明确限制，且要求竞业限制约定不得违反法律、法规的规定，以期在保护用人单位商业秘密、维护公平竞争市场秩序的同时，亦防止用人单位不当运用竞业限制制度对劳动者的择业自由权造成过度损害。
二、“扣除仲裁和诉讼审理期限”约定的效力
本案中，搜狐新动力公司在《不竞争协议》第3.3款约定马筱楠的竞业限制期限应扣除仲裁和诉讼的审理期限，该约定实际上要求马筱楠履行竞业限制义务的期限为：仲裁和诉讼程序的审理期限+实际支付竞业限制补偿金的月数(最长不超过12个月)。从劳动者择业自由权角度来看，虽然法律对于仲裁及诉讼程序的审理期限均有法定限制，但就具体案件而言该期限并非具体确定的期间，将该期间作为竞业限制期限的约定内容，不符合竞业限制条款应具体明确的立法目的。加之劳动争议案件的特殊性，相当数量的案件需要经过“一裁两审”程序，上述约定使得劳动者一旦与用人单位发生争议，则其竞业限制期限将被延长至不可预期且相当长的一段期间，乃至达到二年。这实质上造成了劳动者的择业自由权在一定期间内处于待定状态。另一方面，从劳动者司法救济权角度来看，对于劳动者一方，如果其因履行《不竞争协议》与搜狐新动力公司发生争议并提起仲裁和诉讼，依照该协议第3.3款约定，仲裁及诉讼审理期间劳动者仍需履行竞业限制义务，即出现其竞业限制期限被延长的结果。如此便使劳动者陷入“寻求司法救济则其竞业限制期限被延长”“不寻求司法救济则其权益受损害”的两难境地，在一定程度上限制了劳动者的司法救济权利；而对于用人单位一方，该协议第3.3款使得搜狐新动力公司无需与劳动者进行协商，即可通过提起仲裁和诉讼的方式单方地、变相地延长劳动者的竞业限制期限，一定程度上免除了其法定责任。综上，法院认为，《不竞争协议》第3.3款中关于竞业限制期限应将仲裁和诉讼的审理期限扣除的约定，即“但如因履行本协议发生争议而提起仲裁或诉讼时…乙方应履行竞业限制义务的期限，在扣除仲裁和诉讼审理的期限后，不应短于上述约定的竞业限制月数”的部分，属于劳动合同法第二十六条第一款第二项规定的“用人单位免除自己的法定责任、排除劳动者权利”的情形，应属无效。而根据该法第二十七条规定，劳动合同部分无效，不影响其他部分效力的，其他部分仍然有效。
三、本案竞业限制期限的确定
据此，依据《不竞争协议》第3.3款仍有效部分的约定，马筱楠的竞业限制期限应依据搜狐新动力公司向其支付竞业限制补偿金的月数确定且最长不超过12个月。鉴于搜狐新动力公司已向马筱楠支付2017年3月至2018年2月期间共计12个月的竞业限制补偿金，马筱楠的竞业限制期限已经届满，其无需继续履行对搜狐新动力公司的竞业限制义务。
(生效裁判审判人员：赵悦、王丽蕊、何锐)
指导案例185号
闫佳琳诉浙江喜来登度假村有限公司
平等就业权纠纷案
(最高人民法院审判委员会讨论通过2022年7月4日发布)
关键词 民事/平等就业权/就业歧视/地域歧视
裁判要点
用人单位在招用人员时，基于地域、性别等与“工作内在要求”无必然联系的因素，对劳动者进行无正当理由的差别对待的，构成就业歧视，劳动者以平等就业权受到侵害，请求用人单位承担相应法律责任的，人民法院应予支持。
相关法条
《中华人民共和国就业促进法》第3条、第26条
基本案情
2019年7月，浙江喜来登度假村有限公司(以下简称喜来登公司)通过智联招聘平台向社会发布了一批公司人员招聘信息，其中包含有“法务专员”“董事长助理”两个岗位。2019年7月3日，闫佳琳通过智联招聘手机app软件针对喜来登公司发布的前述两个岗位分别投递了求职简历。闫佳琳投递的求职简历中，包含有姓名、性别、出生年月、户口所在地、现居住城市等个人基本信息，其中户口所在地填写为“河南南阳”，现居住城市填写为“浙江杭州西湖区”。据杭州市杭州互联网公证处出具的公证书记载，公证人员使用闫佳琳的账户、密码登陆智联招聘app客户端，显示闫佳琳投递的前述“董事长助理”岗位在2019年7月4日14点28分被查看，28分时给出岗位不合适的结论，“不合适原因：河南人”；“法务专员”岗位在同日14点28分被查看，29分时给出岗位不合适的结论，“不合适原因：河南人”。闫佳琳因案涉公证事宜，支出公证费用1000元。闫佳琳向杭州互联网法院提起诉讼，请求判令喜来登公司赔礼道歉、支付精神抚慰金以及承担诉讼相关费用。
裁判结果
杭州互联网法院于2019年11月26日作出(2019)浙0192民初6405号民事判决：一、被告喜来登公司于本判决生效之日起十日内赔偿原告闫佳琳精神抚慰金及合理维权费用损失共计10000元。二、被告喜来登公司于本判决生效之日起十日内，向原告闫佳琳进行口头道歉并在《法制日报》公开登报赔礼道歉(道歉声明的内容须经本院审核)；逾期不履行，本院将在国家级媒体刊登判决书主要内容，所需费用由被告喜来登公司承担。三、驳回原告闫佳琳其他诉讼请求。宣判后，闫佳琳、喜来登公司均提起上诉。杭州市中级人民法院于2020年5月15日作出(2020)浙01民终736号民事判决：驳回上诉，维持原判。
裁判理由
法院生效裁判认为：平等就业权是劳动者依法享有的一项基本权利，既具有社会权利的属性，亦具有民法上的私权属性，劳动者享有平等就业权是其人格独立和意志自由的表现，侵害平等就业权在民法领域侵害的是一般人格权的核心内容——人格尊严，人格尊严重要的方面就是要求平等对待，就业歧视往往会使人产生一种严重的受侮辱感，对人的精神健康甚至身体健康造成损害。据此，劳动者可以在其平等就业权受到侵害时向人民法院提起民事诉讼，寻求民事侵权救济。
闫佳琳向喜来登公司两次投递求职简历，均被喜来登公司以“河南人”不合适为由予以拒绝，显然在针对闫佳琳的案涉招聘过程中，喜来登公司使用了主体来源的地域空间这一标准对人群进行归类，并根据这一归类标准而给予闫佳琳低于正常情况下应当给予其他人的待遇，即拒绝录用，可以认定喜来登公司因“河南人”这一地域事由要素对闫佳琳进行了差别对待。
《中华人民共和国就业促进法》第三条在明确规定民族、种族、性别、宗教信仰四种法定禁止区分事由时使用“等”字结尾，表明该条款是一个不完全列举的开放性条款，即法律除认为前述四种事由构成不合理差别对待的禁止性事由外，还存在与前述事由性质一致的其他不合理事由，亦为法律所禁止。何种事由属于前述条款中“等”的范畴，一个重要的判断标准是，用人单位是根据劳动者的专业、学历、工作经验、工作技能以及职业资格等与“工作内在要求”密切相关的“自获因素”进行选择，还是基于劳动者的性别、户籍、身份、地域、年龄、外貌、民族、种族、宗教等与“工作内在要求”没有必然联系的“先赋因素”进行选择，后者构成为法律禁止的不合理就业歧视。劳动者的“先赋因素”，是指人们出生伊始所具有的人力难以选择和控制的因素，法律作为一种社会评价和调节机制，不应该基于人力难以选择和控制的因素给劳动者设置不平等条件；反之，应消除这些因素给劳动者带来的现实上的不平等，将与“工作内在要求”没有任何关联性的“先赋因素”作为就业区别对待的标准，根本违背了公平正义的一般原则，不具有正当性。
In this case, the Sheraton Company treated Yan Jialin's job application differently based on the geographical factors, and the geographical factors belonged to the innate "pre-existing factors" that Yan Jialin and even anyone could not independently choose and control, which cannot be provided by Sheraton Company. Objective and valid evidence proves that if there is a necessary internal relationship between the geographical element and the job position applied for by Yan Jialin or there are other legitimate purposes, the Sheraton Company's distinction standard is unreasonable and constitutes a statutory prohibition.
Therefore, in the recruitment activities involved in the case, Sheraton Company proposed to treat Yan Jialin differently based on geographical reasons not necessarily related to her occupation, which constituted employment discrimination against Yan Jialin and damaged Yan Jialin's equal rights to obtain employment opportunities and employment treatment. It was subjectively at fault. This constitutes a violation of Yan Jialin's right to equal employment, and she should bear the civil liability of public apology and compensation for spiritual comfort and reasonable rights protection expenses.
(Effective judges and judges: Shi Qingrong, Yu Jianming, Kong Wenchao)