Brazilian Retailer Faces Suit Over High Potential Program Exclusively for Blacks
November 17, 2020
by Henry Eickelberg
In September, Brazil’s Magazine Luiza
announced the company would be temporarily limiting applicants to its high
potential trainee program to black applicants in effort to increase
representation of black Brazilians in leadership positions. The
company noted blacks make up 53% of the operational staff yet only 16% of leadership
positions with no representation on the board or executive committee.
The Brazilian Federal Constitution prohibits
“any form of discrimination” and other laws stipulate it is a “crime of racism
to refuse or hinder job applications ‘based on race or [ethnic]
discrimination.’” However, affirmative action, including recruiting
programs have been deemed permissible under Brazilian law. Indeed,
the Labor Branch of the Brazil’s Public Attorney’s Office declined to
investigate on the grounds of the Office’s support for affirmative action and
recruiting programs.
However, as Veirano’s José Carlos Wahle and Luiza Lemos
write, the announcement of the
program spurred wide commentary on social networks. Subsequently, a
different branch of the Public Attorney’s Office charged with matters of
“collective interest in the federal or international spheres” opened a case seeking
to suspend the program on the grounds it violates Brazil’s Constitution and
anti-discrimination laws. According to Mr. Wahle and Ms. Lemos, although
there are not many Brazilian Labor Court decisions on this topic, there are
Brazilian Supreme Court cases which address affirmative action-style programs
at public universities. They state that these cases apply in
employment law situations and indicate Magazine Luiza’s program is both
justified and legal. In upholding affirmative action programs in higher
education situations, Brazil’s Supreme Court looked for real evidence of
underrepresentation of a specific group.
The authors note that with respect to Magazin
Luiza, not only is there a large wage disparity societally in Brazil between
whites and blacks, but the company also cited its own representation statistics
and noted that blacks would not even apply to the program
previously. According to Mr. Wahle and Ms. Lemos, companies looking
to adopt similar programs in Brazil should:
- Have evidence of the underrepresentation of the
minority group which will benefit from the program
- Make the program temporary; and
- Clearly publicize the temporary nature of the
program.
HR Policy Global will continue to monitor
these types of programs in Brazil and in the larger Latin American
region.
