March 21 was established by the United Nations (UN) in 1976 as the International Day to For the Elimination of Racial Discrimination, in memory of the massacre that took place on March 21, 1960, in South Africa, during the Apartheid regime.
In a peaceful demonstration attended by about 20,000 people against the Pass Law – which required black people to carry identification cards showing the places they could go – the local army fired at the protesters. The attack left 69 dead and 186 injured and became known as the "Shaperville Massacre".
The fight against racial discrimination is an old international struggle, long before Apartheid. In Brazil, although there were previous movements, including the promulgation of the International Convention on the Elimination of All Forms of Racial Discrimination in 1969,[1] the agenda gained strength with the Federal Constitution of 1988.
The new constitutional charter established the crime of racism as non-bailable and imprescriptible (article 5, item XLII), dealt with and regulated by Law 7,716/89 and Law 14,532/23, which equates racial insult to the crime of racism.
There is no doubt that the topic is extremely important, both nationally and internationally. Keeping the issue in the spotlight helps combat the scars left by centuries of enslavement. The discussion should also take place in spheres that may seem to play a secondary role in the fight for the elimination of racial discrimination, but which have an important impact on this fight, as is the case of labor/employment law.
The reader may be wondering what the employer, employee or workers in general and the labor/employment laws have to do with this agenda. The answer is: everything.
March 21 serves to draw attention to important issues that affect all of society and is an opportunity to reflect on the role of labor relations in this historic struggle.
The Federal Constitution itself provides, in article 7,[2] item XXX, that any type of difference in salary, exercise of functions and admission criteria due to sex, age, color or marital status is prohibited.
Before establishing any employment relationship, therefore, the employer must guarantee equal access to the hiring process for all, regardless of race or ethnicity.
It is also considered a crime, subject to imprisonment of two to five years, to deny or prevent employment in a private company due to discrimination or prejudice based on race, color, ethnicity, religion or national origin.[3]
This does not mean that the company cannot establish specific selection processes for certain groups, the so-called positive discrimination, as established in article 4, item II, of the Statute of Racial Equality.[4]
What needs to be clear is the company's need, the requirements of the position, and the justification of the criteria established for the process. A case that illustrates the subject well is the much-talked-about trainee program exclusively for black people carried out by Magazine Luiza in 2020.
At the time, the Labor Court understood that the program was fully valid, based on the Federal Constitution and the Statute of Racial Equality, which establishes policies to promote racial equality and combat discrimination, in addition to creating reparation mechanisms for victims of racism.
This is a historical reparation in a country that, for years, used the regime of slavery to organize its society.
In the Statute of Racial Equality there is an express provision that it is the duty of the State and society to guarantee equal opportunities, regardless of skin color or ethnicity (Article 2). This concept of "society" naturally encompasses companies and employers in general.
The principle of the social function of the company and of ownership is one of the pillars of our legal system. This principle involves precisely the responsibility of companies to contribute to society. In addition to profit, they must seek to promote equality, create jobs, respect the environment and ethical practices in the exercise of their activities.
Another rule that regulates the subject is Law 14,553/23, according to which companies must declare race and ethnicity in labor/employment documents, which is a way to corroborate the commitment of the private sector and labor law to promote racial equality.
We also highlight the issue of equal pay. As already addressed in several articles on our portal, this topic has been treated by the government with extreme attention, with the proximity of the deadline for companies with more than 100 employees to prepare the Salary Transparency Report, instituted by Law 14,611/23. Although the focus is currently on gender equality, it is expected that, in a next stage, other aspects will be addressed, such as racial equality.
Employers Should Be Mindful of Their Obligations
It is the employer's role to allow access to job positions to all on an equal basis, in addition to ensuring a healthy work environment from a physical and psychological point of view, prohibiting any and all discriminatory practices in their establishments and refraining from practicing any discriminatory act.
In addition to being considered crimes, discriminatory acts such as hindering or preventing access to the labor market, hindering career progression with the institution of totally subjective and unjustified criteria, allowing the adoption of expressions or jokes of a discriminatory nature also characterize, in the labor sphere, the so-called "moral harassment".
All these acts are punishable by compensation to the victim and may generate various administrative penalties, such as investigation by the Labor Public Prosecutor's Office and administrative fine, among others.
Other points that employers should be aware of:
- failing to provide the necessary equipment on equal terms for all employees;
- prevent the employee's functional advancement or other form of professional benefit; and
- provide differential treatment in the workplace – especially in relation to salary.
These practices are classified as a crime by Law 7.716/89 and punishable by imprisonment of two to five years, in addition to administrative fines and sanctions from the Public Prosecutor's Office.
In addition to all the pecuniary effects and judicial and administrative penalties already mentioned, it is necessary to consider the reputational impact in the event of a conviction for moral harassment as a result of racial discrimination or any act of discrimination related to skin color.
Thus, on March 21st, in addition to remembering the reasons that marked the date in the past, we take the opportunity to draw the attention of our readers, customers and partners to the theme of racial discrimination, especially to the role of companies as fundamental agents in the fight for racial equality.
We must all be allies of the government in the fight for the elimination of any form of discrimination, not only to avoid the penalties mentioned here, but also to fulfill the social function provided for in the Federal Constitution and collaborate in the construction of the just and egalitarian society that we so much desire.
Therefore, we encourage employers to inform themselves on the topic. It is necessary to study, promote and disseminate actions to combat racial discrimination and to deepen its obligations, as well as to know the tools available for the fulfillment of this social role.
Concluding and proposing an answer to the title of this article, labor law is an important and essential tool to combat racial discrimination, ensure equality, isonomy and the creation of a society that is always and necessarily inclusive.
[2] Article establishing minimum workers' rights
[3] Law 7.716/89, article 4
[4] Law 12.288/10
