Xinjiang Draft Legal Measures Promote Hiring Ethnic Minorities, Against Track Record of Employment Discrimination

Congressional-Executive Commission on China, 18 November 2011

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CECC — New draft measures on employment promotion, under consideration in Xinjiang, stipulate measures to prevent discrimination and promote the hiring of non-Han (“ethnic minority”) groups in the region. The measures track China’s national employment promotion law, but also stipulate subsidies for hiring ethnic minorities. Such subsidies are absent in the national law and employment promotion regulations in other provincial-level areas. If passed, the impact of the draft measures remains unclear, however, as previous laws and regulations already bar discrimination and have failed to prevent hiring practices in Xinjiang that discriminate against job candidates based on factors including ethnicity and sex.

The Standing Committee of the Xinjiang Uyghur Autonomous Region (XUAR) People’s Congress recently completed a first stage of deliberations over draft implementation measures for China’s Employment Promotion Law, according to October 9 and October 13, 2011, reports from Legal Daily. The reports highlight the draft’s attention to employment discrimination and equal employment, noting stipulations that workers “enjoy the right to equal employment,” that hiring units must provide “equal and fair employment opportunities,” and that they “must not stipulate discriminatory employment conditions.” In addition, the draft stipulates that ethnic minority candidates testing for jobs with the government and state-run institutions receive “appropriate consideration” (shidang zhaogu) and that enterprises that recruit and hire ethnic minority candidates enjoy social insurance subsidies (shehui baoxian butie).

Based on the descriptions of the draft implementing measures in the Legal Daily articles (the full text of the draft measures appears unavailable), the Xinjiang measures mirror many of the provisions in China’s national law on employment promotion. Article 3 of the national law states that workers have the right to equal employment and that they are not to be discriminated against based on differences such as ethnicity, race, sex, and religious belief. Article 26 states specifically that employing units and employment intermediaries are to provide equal employment opportunities and not practice employment discrimination. Other articles that address discrimination include Article 25 (stipulating that governments create an environment for equal employment and eliminate discrimination) and Articles 29 and 31 (stipulating that disabled workers and rural workers, respectively, not be discriminated against in hiring). Under Article 62, workers may bring a suit in court in cases of discrimination. It is unclear if the XUAR draft includes similar language on lawsuits. The national law also includes language stating that hiring units shall give “appropriate consideration” to ethnic minorities (Article 28), but it does not include provisions on insurance subsidies.

To date, 19 other provincial-level areas in China appear to have issued implementing measures, regulations, or amended regulations on employment promotion, following passage of the national law. The draft Xinjiang measures appear to be the only one that includes subsidies for employers that hire ethnic minorities, though some other regulations contain multiple provisions addressing discrimination or promoting the employment of ethnic minorities. See, for example, implementing measures from Hunan and Hainan provinces. For comparison with provisions from another autonomous region, see implementing measures from the Tibet Autonomous Region.

It is unclear what impact the XUAR measures, if passed as drafted, would have on curbing discriminatory hiring practices. As noted in the Congressional-Executive Commission on China 2011 Annual Report, despite already existing prohibitions against employment discrimination in Chinese law, some government and private employers in the XUAR have continued to discriminate against categories of job candidates including ethnic minorities and women. The XUAR draft’s provision on insurance subsidies may provide a new incentive for eliminating some discriminatory practices and promoting the hiring of ethnic minority candidates, but it is unclear if subsidies to date have been effective in promoting similar employment policies in the region. A XUAR government and Party committee opinion on employment promotion issued in October 2009 included provisions on equal employment opportunities (Item 3) and called for “recruiting more ethnic minority workers to the extent possible”—including an unspecified “fixed proportion” of positions for ethnic minority college graduates (Item 2.2)—but follow-up reporting on the opinion and information on its impact was limited. The opinion also stipulated that the government would subsidize old-age pension insurance for enterprises hiring workers from Xinjiang (Item 2.2), but did not stipulate subsidies specifically for ethnic minority workers from the region.

Moreover, as noted in the CECC 2011 Annual Report, some job recruitment announcements from the XUAR continued to reserve positions exclusively for Han Chinese in civil servant posts and private-sector jobs. A job announcement for a hospital in Urumqi city, for example, advertised in late 2010 for 28 positions, all of which were reserved for Han. Civil servant recruitment in fall 2010 for county-level discipline inspection and supervision offices reserved 93 of 224 open positions for Han, leaving 93 of the remaining positions unrestricted by ethnicity and reserving 38 for members of non-Han groups. In an apparent shift from previous years, however, 2011 annual recruiting for the Xinjiang Production and Construction Corps (XPCC) left almost all positions unreserved by ethnicity—marking a change from past practice of formally reserving a majority of positions for Han—but the XPCC continued restrictions based on sex.

See Section II—Labor and Section IV—Xinjiang in the CECC 2011 Annual Report for additional information. See also CECC analyses (1, 2, 3, 4, 5, 6) for more information on job recruiting practices in the XUAR in 2011 and in previous years.