Following a worldwide movement demanding responsible investments and sustainability actions, public and private organizations in Brazil seem to be more eager than ever to include social development principles into their practices. In this scenario, a growing number of social programs (sometimes referred to as diversity and inclusion programs) aiming to encourage a diverse workforce and contribute to the reduction of inequality have been put in place.
However, managing diversity requires well-implemented actions in recruitment and career plans, investments in training and monitoring and, at the same time, compliance with employment regulations.
The Brazilian Federal Constitution provides for the equality before the law and prohibits difference in wages, duties and hiring criteria due to gender, age, race or marital status.
In view of the above, recruitment programs focused on specific ethnic minorities can - and have been - challenged in court. Plaintiffs have argued that not allowing workers of other races or ethnicities to apply for the jobs in question constitutes unlawful discrimination. Possible parties with legal standing to initiate such suits might be groups not favored by the changes, public defenders (Defensoria Pública), the Prosecutors’ Office (Ministério Público) or even private individuals that consider themselves disenfranchised by the new trend.
The matter is still to be settled by decisive case-law. It is unlikely that the Labor Prosecutors’ Office will file a lawsuit given that it has recently and publicly stated that affirmative actions of such nature are in accordance with the Brazilian Federal Constitution, the Racial Equality Act and the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Brazil.
Based on such acts, Brazilian Superior Courts have already confirmed the validity of affirmative actions based on ethnicity criteria aiming to promote the alleviation of poverty and reduction of regional, social and wealth inequalities - fundamental goals of the country – in different cases, particularly with respect to the allocation of a percentage of university vacancies or public career jobs to minority groups. These decisions have held that actions based on reverse discrimination, however, are only legitimate if the social exclusion they aim to remedy still exists, otherwise they would benefit a group in violation of equality principles.
In case the meeting of this rather subjective standard is uncertain, a more advisable alternative would be to adopt a more objective criterion, such as the level of income. This may help ethnic groups prevailing in low-income households without creating legal issues regarding the exclusion of equally disenfranchised segments of the population.
The fact that the interpretation of the equality principle in Brazilian society is subject to such active and lively debate demonstrates that Brazilian organizations should implement social programs carefully, lest they involve themselves in public controversy.
Such challenge is not limited to recruitment. Brazilian Labor Laws provide for the salary parity principle and requires that all employees who perform equivalent duties, with similar technical skills and productivity, must receive the same wage and benefits when the difference in time of service with that employer and in that position does not exceed, respectively, four and two years.
While, on the one hand, initiatives enabling individuals with an underprivileged background to compete on an equal footing with other workers are crucial to effective social programs, on the other they do not justify exceptions to the salary principle rule. Investments in education and a well-structured career plan may be a good call to promote equality of opportunities in higher positions.
Finally, the employer is responsible for the working environment and is liable, before its employees, for acts committed by other employees. Thus, clear non-discrimination policies, periodic training and monitoring of employee’ activities is fundamental to the promotion of a healthy organizational culture.
A solid social program may add value to a company’s image but should keep the correct side of existing labor laws. Conversely, initiatives that are simply marketing oriented or otherwise not well-implemented may have an opposite effect and create legal risk.
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