Recent developments in affirmative action for hiring women and Black people in Brazil

Friday 29 October 2021

Rodrigo Seizo Takano
Machado, Meyer, Sendacz e Opice Advogados, São Paulo

Murilo Caldeira Germiniani
Machado, Meyer, Sendacz e Opice Advogados, São Paulo

Verônica Marangoni Noro Veiga
Machado, Meyer, Sendacz e Opice Advogados, São Paulo

Society and the labour market were built upon race and gender inequalities in Brazil. In a recent study,[1] Brazilian researchers concluded that: (1) students who attended a private high school and a public university were more likely to earn higher salaries in Brazil, especially if they are white men; (2) those who benefit least from this life trajectory are Black women; and (3) the difference between salaries earned by white men and Black women who attended the same schools and are in the same profession is significant. White men earn an average of BRL 10,000 a month (about £1,300), Black women earn half of this figure.

The Brazilian Institute of Geography and Statistics (IBGE) published a study on ‘social inequalities by colour or race in Brazil’, according to which, in 2018: (1) 64.2 per cent of the unemployed were Black people, despite representing 55.8 per cent of the Brazilian population; and (2) the Brazilian labour market is not represented by Black and brown people in the same proportion: 68.6 per cent of managerial positions were occupied by white employees, while only 29.9 per cent were held by Black or brown employees.[2] Another study on social indicators for women in Brazil published by the IBGE also revealed that, on average, in 2016: (1) women earned almost 25 per cent less than men; and (2) hold only 39.1 per cent of managerial positions, despite representing more than half of the population.[3]

Despite this, historically, there were no statutory affirmative actions aiming at reducing these inequalities in Brazil. The only exception is related to people with disabilities: according to Law No 8,213/1991, companies employing more than 100 employees must guarantee between 2 and 5 per cent of their positions to people with disabilities.

In the past decade, however, and mainly because of a worldwide increase in environmental, social and corporate governance (ESG) awareness and practices, not only have corporations started to implement affirmative action programs, but also new legislation has slowly been enacted in Brazil aiming at reducing social inequalities.

On top of the Brazilian Federal Constitution of 1988, which has, among its main principles, equality and non-discrimination, corporate affirmative actions have been indirectly encouraged by Law 12,288/2010 (the Brazilian Racial Equality Statute) and Decree 9,571/2018, which establishes the National Guidelines on Companies and Human Rights.

From a legal perspective, the key element to be analysed is whether the existence of recruiting processes only for Black people or women would constitute unlawful discrimination or be justified as lawful affirmative action due to lack of people with these characteristics within companies in Brazil, mainly in leadership positions.

This discussion has grown in Brazil in the past few months since Magazine Luiza (one of the biggest retail companies in Brazil) and Liv Up (a growing food tech start-up in the frozen food market) released programmes directly aimed at hiring only Black people and women, respectively. Both companies were denounced for these practices to the Public Labour Prosecution Office (the ‘Office’) on the allegation that they are discriminatory. After being investigated, both programs were soon acknowledged as lawful and valid by the Office.

When analysing Magazine Luiza’s case, the most popular precedent on this matter, the Office dismissed the denunciation as per its Technical Note published in 2018 (NT 001/2018) regarding the possibility of recruiting processes specifically for Black people as a tool towards equality, promotion of citizenship and human dignity. The Office opined that a recruitment process for trainees only for Black people, in fact, promoted positive discrimination and aimed to compensate historical disparities between Black and white people found in the Brazilian labor market.

NT 001/2018 highlights the lawfulness of affirmative action by means of specific recruiting programmes, advertisements, databases and/or virtual platforms for Black people aiming at materialising the principle of equality set forth by the Federal Constitution. According to the Office, this type of programme, when aimed to guarantee effectiveness of the principle of equality, should be deemed lawful.

The Office also emphasised the importance of distinguishing positive discrimination from the negative discrimination: positive discrimination targets to reduce structural and historical disadvantage of any nature suffered by a group of people. Racism is one of the biggest historical issues in modern society and, therefore, all actions to reduce and combat it must be considered legitimate based on the principle of isonomy, according to which equals must be treated equally and the unequal must be treated differently in the same proportion of their inequality.

Liv Up was denounced to the Office for publishing a recruiting process for data engineers only for women. After investigating Liv Up, the Office also dismissed the complaint, and the company was able to maintain this recruiting process without having to execute any settlement or adjusting its practice.

With these recent precedents, this type of affirmative action is a hot topic in Brazil and has recently been implemented by a growing number of companies.

In any case, before implementing this type of programme, companies must be cautious and mindful about how it is implemented to make sure its core is reduction of inequalities and to base its implementation on the company’s statistics as well as market data, so that the company is able to evidence its lawfulness if challenged.


[1] Beatriz Caroline Ribeito, Bruno Kawaoka Komatsu and Naercio Menezes-Filho, ‘Diferenciais Salariais por Raça e Gênero para Formados em Escolas Públicas ou Privadas’ (‘Salary Differences by Race and Gender for Graduates of Public or Private Schools’), Policy Paper No 45 (Insper, July 2020) www.insper.edu.br/wp-content/uploads/2020/07/Policy-Paper-45.pdf accessed 9 September 2021.

[2] IGBE, 'Desigualdades Sociais por Cor ou Raça no Brasil' ('Social Inequalities by Colour or Race in Brazil') (IGBE, 2019) https://biblioteca.ibge.gov.br/visualizacao/livros/liv101681_informativo.pdf accessed 9 September 2021.

[3] IGBE, ‘Estatísticas de Gênero: Indicadores sociais das mulheres no Brasil’ (‘Gender Statistics: Social Indicators of Women in Brazil’) (IGBE, 2018) https://biblioteca.ibge.gov.br/visualizacao/livros/liv101551_informativo.pdf accessed 9 September 2021.