The promotion of trainee programs aimed at black people and minorities is an innovative initiative increasingly adopted by companies that aim to promote diversity and social inclusion. The legality or not of such action, however, has generated doubts.
The uncertainty of some is related to the fact that such programs are intended exclusively for a specific group of workers, which would supposedly exclude the rest.
However, the target audience of such programs are people who, for a long time, due to the social historical context, were on the margins of the labor market, subject to discrimination by race, gender, social condition, among others, which prevented them from having access to equal employment opportunities.
It is a group of people who faced, and still face, difficulty in inserting into the labor market due to social and educational obstacles and, even after their insertion, they are still not at an equal level with others. This is what studies published by the Insper – Institute of Education and Research[1] and by the IBGE - Brazilian Institute of Geography and Statistics[2] on the huge gender and race disparity in wages paid in the labor market in Brazil.
Of the 12 million Brazilians unemployed in the first quarter of 2022, 64% declared themselves black and brown. They represent, however, a share of 55.8% of the Brazilian population. Data from the Continuous National Household Sample Survey -PNAD, released by the IBGE and indicate a possible structural discrimination of black and brown people, despite the scenario of equal opportunities.
With regard to management positions, the gap is even greater: 68.6% are occupied by whites and only 29.9% by blacks or browns people, although, as already said, the black or brown population is the majority in Brazil.
In order to break this historical paradigm and change the social scenario, contributing to promote equal opportunities and greater diversity for future generations, the solution has been affirmative actions aimed at social inclusion. They have been instituted both by the public authorities, with quotas in universities and in public tenders, and by private initiative, with programs to promote a more inclusive work environment.
Such actions are supported in our legal system, because they are based on the principle of equality insculpied in Article 5 of the Constitution of the Federative Republic of Brazil.
In this respect, it is important to clarify that the equality advocated by our order is not formal and negative, that is, that in which the law should not establish any difference between individuals, treating everyone equally. In fact, it is a material equality (real or substantial), which recognizes the differences between individuals in hypotheses and social situations.
It is an equality that discriminates not to exclude, making use of aristotelian thought too much mentioned, in which equals must be treated equally and unequal ones unequally, to the extent of their inequalities. Thus, it is denoted that there is a guideline that authorizes the proposed "discrimination", to achieve the reverse effect of combating it.
In accordance with this understanding, the Judiciary has been positioned, in the situations that have been put to it for analysis, by the legality of such programs aimed at minorities and sustained their validity. As is the case in the judgment of the ADPF 186, in which the Supreme Federal Court -STF considered the quotas constitutional as a policy of affirmative action in the system of access to the public university.
In the same sense, in October 2020, the Supreme Court, in judging the ADPF 738, affirmed the constitutionality of positive measure instituted by the Superior Electoral Court-TSE, to determine the immediate application of incentives to applications of black people, in accordance with the exact terms of the TSE's response to Consultation 600306-47.
More recently, in the public civil action file, the respective Judge recognized the validity of an institution of an exclusive trainee program for black people, with the substitute Labor Judge, Laura Ramos Morais, of the 15th Labor Court of Brasilia/DF, affirming that such a program is not discriminatory: "On the contrary, it demonstrates an initiative for social inclusion and promotion of equal opportunities arising from the employer's social responsibility, pursuant to Art. 5, XXIII, and Art. 170, III, of the Federal Constitution, and is duly authorized by Article 39 of Law 12,288/2010".
Thus, in our point view, it is fully lawful to create affirmative actions by the private initiative in order to enable conditions of equity and progress of groups of people who have been excluded due to discrimination by race, gender and other related forms of intolerance. Such measures shall not be considered discriminatory.
[1] Available in https://www.insper.edu.br/wp-content/uploads/2020/07/Policy-Paper-45.pdf
[2] Available in https://biblioteca.ibge.gov.br/visualizacao/livros/liv101681_informativo.pdf
