Trainee only for blacks is not discriminatory, Justice decides in R$ 10 million lawsuit

The 15th Labor Court of Brasília (DF) decided this Thursday (3) that the exclusive trainee program for black candidates carried out by Magazine Luiza since 2020 is not discriminatory.

“On the contrary, it demonstrates an initiative for social inclusion and the promotion of equal opportunities”, wrote substitute labor judge Laura Ramos Morais, in the decision.

The public civil action was initiated by the DPU (Defensoria Pública da União) in October 2020, a few days after the retailer announced that only black candidates would be accepted into its program, and asked for R$10 million in compensation for moral data.

Union public defender Jovino Bento Junior, who signed the lawsuit against the initiative, called the program “sealing marketing”, which “has as its objective not only political gain, but also the expansion of the company’s profits and market share .”

In the request, he defended that the measure generated the exclusion of other groups of workers – such as women, Asians, indigenous people and foreigners (he mentioned, according to the judge, Venezuelans who live in Brazil).

The DPU has been contacted but has not yet responded. The decision can be appealed.

Magazine Luiza says in a statement that it has always been convinced of the legality and legitimacy of its trainee program exclusively for blacks. The decision, according to the chain of stores, “is extremely relevant, as it gives even more legal certainty for other companies to also promote affirmative action of a similar nature.”

The MPT (Ministry of Labor) stated, in an opinion, that the “defense of the interests of the white population or of other groups not covered by the selection process” did not form part of the DPU’s constitutional attributions.

He also defended that the action against the trainee program was an “isolated act” by the public defender.

Magazine Luiza’s black-only trainee program has attracted attention — and some opposition since the announcement. In the first edition, 22,000 recent graduates signed up and 19 were selected. In the most recent, 10 became trainees of the network, among 15 thousand subscribers.

After him, other companies such as Bayer, Dow and Sheet they also carried out exclusive training for black candidates.

Labor judge Laura Ramos Morais wrote in the decision that denied the request against the trainee that Brazil enacted, in January of this year, the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance.

The convention defines that special measures and affirmative action “shall not constitute racial discrimination, provided that such measures do not lead to the maintenance of separate rights for different groups and do not perpetuate themselves once their objectives are achieved.”

For the magistrate, the trainee program is protected by the convention, the Federal Constitution, the Racial Equality Statute (law No. 12,288/10) and the jurisprudence of the STF (Supreme Federal Court).

Defender asked for removal from office and protection

Public defender Jovino Bento Júnior even asked to be removed from office after reporting that he had been threatened, but the request was denied. He told the DPU (Defensoria Pública da União) that he had been threatened as a result of proposing the action. In a message sent to him, he says, a man said he would “discharge two pistols at the head” of the defender.

The defender’s decision to challenge the legality of the trainee in the retail chain generated reactions among colleagues at the institution. Anadef (National Association of Federal Public Defenders) released a note defending the promotion of affirmative action as instruments for the prevalence of rights and freedoms.

The Federal Public Defender’s Office stated that the performance of federal public defenders is based on the principle of functional independence. “Therefore, it does not depend on prior analysis of merit or superior hierarchical authorization.”

The DPU also says that it is common for members of the institution to act in the same judicial process in different and opposing poles and, therefore, respect for the plurality of thoughts and the difference of opinions is essential.