Development phases of U.S. employment anti-discrimination law and reflections on its dilemmas from the perspective of China

Abstract

ABSTRACT The United States (U.S.) is an inescapable setting for Chinese scholars to study employment anti-discrimination law. They often analyse the U.S. law from different and even diametrically opposite perspectives. The systematic study of the law has theoretical and practical implications. The evolution of the U.S. law can be divided into three phases: the emergence and rise phase from the 1960s to the 1970s, the contraction and innovation phase during the 1980s, and the overall expansion and partial retraction phase from the 1990s onward. The U.S. employment anti-discrimination law is now constricted by the coexistence of effective regulation of explicit discrimination and insufficient regulation of implicit discrimination, decreasing success rates, increasing caseloads of employment discrimination suits, and an increase in the number of employment discrimination disputes resolved through alternate dispute resolution. The contribution of the U.S. law to expanding the breadth and depth of the right to fair employment opportunities, improving the burden of proof standard for employment discrimination disputes, and establishing a robust labour market competition mechanism can be used as a reference for other countries such as China.