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Action speaks louder than words: perspectives on affirmative action from the UK and Brazil, with comments from other countries

Written by
Veirano Advogados, one of the leading and most renowned Brazilian business and employment law firms.
Authors
Luiza Lemos
Veirano Advogados
Lucy Lewis
Lucy Lewis
Partner - United Kingdom
Lewis Silkin
Jose Carlos Wahle
José Carlos Wahle
Partner - Brazil
Veirano Advogados
Gemma
Gemma Taylor
Lewis Silkin
United Kingdom
02.11.20
23
Positive or affirmative action, that is, targeted steps to address underrepresentation or disadvantage, is a key topic for employers keen to increase the diversity of their workforces. This article gives guidance on the legal status of affirmative action in Brazil following a high-profile recent case there, then sets out five principles for employers in the UK. Finally, lawyers from around the Ius Laboris network offer a local perspective on affirmative action from their jurisdictions.
Affirmative action in Brazil: what can we learn from the Magazine Luiza Cases

A prominent Brazilian magazine retailer has taken affirmative action by only opening its trainee leadership programme to black applicants temporarily. This article explores the court case to which this gave rise, how affirmative action is treated in Brazilian law, with advice for employers.

 

Background

Magazine Luiza, one of the largest Brazilian retailers, made public last month that their next trainee programme will be exclusive for black people. It is the first time that they have applied affirmative action to their annual programme, which has existed for many years and is designed to select professionals with high potential to become future leaders of the company. The announcement not only was widely commented on social networks due to Brazilian current polarised society but also brought repercussions in the labour courts and public offices.

The case has emphasised the need for companies to analyse, in a broader perspective, whether affirmative action applied to management of recruiting programmes are legal. The Federal Constitution prohibits ‘any form of discrimination’ and Law 7716/1989 stipulates it is crime of racism to refuse or to hinder job applications ‘based on race or colour discrimination.’ The question is if these legal provisions prohibit reverse discrimination or not.

 

1. The discrimination claim

Following the vivid and instantaneous social medial debate, the Public Attorney’s Office, Labor Branch (the ‘MPT’) received complaints of discrimination against Magazine Luiza’s programme. They declined to investigate on the grounds that the MPT supports affirmative action, including in recruiting programmes. However, another branch of the Public Attorney’s Office, dedicated to providing legal assistance to the population on matters of collective interest in the federal or international spheres (the ‘DPU’), opened a court case seeking the suspension of the programme on grounds of:

  • violation of the fifth article of the Brazilian Federal Constitution, which establishes that all individuals must be treated equally before the law, without any kind of discrimination;
  • violation of Law 7.716/89, which establishes that a private company that denies or impairs the access of individuals to a job due to discrimination of race, colour, religion or nationality is committing the crime of racism; and
  • particularly from a labour and employment standpoint violation of the seventh article  of the Federal Constitution, which forbids discrimination on grounds of gender, colour, race, among others, as a criteria for admission to work.

 

The lawsuit brought significant discomfort to the public attorney’s peers and a public note was issued to highlight that the case was raised as an individual initiative while the DPU as a body supports affirmative actions.

Criticism of these types of programmes is usually twofold. First, there is the literal reading of the constitutional and legal prohibitions of discrimination; then there are ethical arguments, such as the argument that reverse discrimination emphasises racism rather than fighting against it, that it constitutes ‘reverse racism’, meaning a negative approach to human nature and relations and even that this type of initiative is only a marketing strategy to polish or upgrade the company’s brand, thus, immoral and illicit.

While it is true that the Constitution and Law 7716/1989 forbid discrimination in work recruitment processes and establish the right of equal treatment for all, the question that remains is its interpretation in the social context of Brazil. Is it possible to argue that affirmative action such as that taken by Magazine Luiza is legal considering these basic principles of our legislation? What is the understanding of Brazilian Courts on this?

 

2. The legality of affirmative action in Brazil

Affirmative action is an active effort by a public or private entity, in employment, education or government contracting, which gives limited preference to members of minority groups aiming to improve opportunities for them. The goal is to remedy or at least mitigate the effects of discrimination and, when focused on black people, fight against the so-called ‘structural racism’ that is a reality in many countries with a history of slavery.

In Brazil, there have not yet been many decisions of Labor Courts analysing affirmative action in the field of employment, but we had a groundbreaking judicial discussion in the past about the constitutionality of affirmative actions in education; more precisely, the use of racial quotas in admissions to public universities. As a result, the Brazilian Supreme Court (‘STF’) decided repeatedly that racial quotas do not violate the constitutional prohibition of discrimination. In the judgment, the court acknowledged that racial quotas are actually a valid mechanism to achieve the equality of rights foreseen in the same constitutional provisions.

The rationale of these decisions is crystal clear and, except for the specifics related to the general right of access to public education, it applies to affirmative action in general, including employment-related controversies. The STF established, in short, that the equality principle does not have to be applied formally and literally, but rather considering discrepancies among social groups and the need for inclusion of minorities that have been historically kept way from opportunities. STF’s former Justice Nelson Jobim explained in some of the decisions evaluating the equality principle that

‘positive discrimination introduces unequal treatment aiming to produce, in the future and concretely, equality. It must be deemed legitimate under our Constitution because it is an instrument to achieve real equality.’

In short, STF’s argument is that the actual meaning of the equality principle is that equals should be treated equally and unequals unequally, in the exact measure of their inequality. In other words individuals should be treated the same, unless they differ in ways that are relevant to the situation in which they are involved. Considering that, it is worth mentioning that, according to STF’s interpretation of the equality principle, the context of any affirmative action is relevant when evaluating whether it constitutes discrimination. It is important to observe if the group that is benefiting from the action is actually underrepresented in the organisation, that it would not lead to exclusion of other groups from its general population and to be able to confirm that the purpose is to reach a diverse and well-represented environment and not an uniform or exclusive one.

The relevant social context that authorises affirmative actions towards the black population is more than clear: social statistics show relevant signs of racial discrimination, since all data gathered from official researches institutes demonstrates that black people earns roughly 56% less than white people, even when they have identical educational profiles or profession, and that white people usually occupy most of the high-paying or top positions. Therefore, giving black people (and other under-represented minorities, such as indigenous people) preference in admission to education, the labour market or, more specifically in the case under analysis, leadership positions in the labour market, are valid and legal under our Federal Constitution, in addition to further legislation that also justifies this understanding.

This legislation begins with the International Convention on the Elimination of All Forms of Racial Discrimination from the United Nations, ratified by Brazil in 1968, which establishes that:

‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination (…).’

More recently,the Racial Equality Statute (Law 12.288/2010) has provided that it is society’s responsibility to ensure the equal treatment for all, that the inclusion of victims from ethnical-racial discrimination must be a judicial-political goal and that this goal must be promoted mainly through affirmative action in order to eliminate all historical, social and cultural difficulties that black people have in Brazil.

The conclusion is that, not only is affirmative action in the labour market not a violation of Brazil’s rules against discrimination, but it is actually understood to be one of the best ways to achieve real equality and, with that, to extinguish any kind of discrimination in the future.

 

3. Magazine Luiza’s Context

If affirmative action is lawful in the abstract, the context will have a decisive role in assessing concrete cases. Magazine Luiza justified the programme as an effort to increase the number of black people in leadership positions. They successfully embrace diversity as a principle and have a population of 53% of black people among operational staff, but there is still a racial imbalance in leadership positions, with only 16% of black people, and none on company’s board and executive committee.

The company also observed from its previous programmes that black people do not even apply for the trainee programmes, as they do not see themselves as company’s leaders, given the current scenario. In the words of Luiza Trajano, the company’s founder and chairwoman of the board:

‘Slavery was in Brazil for 350 years, the majority (of its population) is black, the majority lives on the outskirts. This is the truth, so they don’t apply (for trainee programs).’

Therefore, as the trainee programme’s focus is to develop the next generation of leadership for the company, which does not have black people well-represented and, despite all the company’s efforts, has not achieved the diversity desired with all regular programmes, the affirmative action is strongly justified and, given all past decisions of STF and the current interpretation of our constitutional principles, is legal.

The context of Magazine Luiza’s program in 2020 perfects the STF’s interpretation of the Constitution. It was temporarily designated for black people only, but it had always been and will be again open to candidates irrespective of race or colour. Besides, Magazine Luiza has plenty of job ads for positions available to the population at large. They decided to apply affirmative action to one class of trainees, as true affirmative action, within a much broader context of equal employment opportunities.

 

4. Conclusion

Diversity has become one of the most relevant themes for organisations today, given its proven potential to create a better place to work, to promote empathy and, with that, collective work, innovation and creativity and, although this should not be a primary reason, but rather a bonus, increase company’s market value. In short, it is good to society and to company’s profits. One relevant tool to reach diversity is an affirmative action which, as we have seen, is legal and even desired under our legislation, provided that it is actually action aiming at promoting inclusion of excluded minorities and not a new type of discrimination and exclusion of some group from the workplace.

Therefore, companies that intend to adopt similar programmes in Brazil, must collect evidences of the underrepresentation of the minority group that will benefit from the programme, design a temporary programme with clear rules that will not lead to the exclusion of other groups from the organisation, ensure it is well-publicised and that this initial ‘advantage’ will not subsist after recruitment (although some careful attention to the progress of these individuals may be necessary). Where there recommendations are observed, affirmative action will be certainly valid in Brazil, but more than that: it will give the company all the benefits that arisess from a diverse organisation and the opportunity to proactively work to ensure that we are all equals, not only legally, but in reality.

Positive action speaks louder than words: five principles for employers in the UK

What are the legal limits of positive action in the workplace in the UK? When is it permissible to give preferences on gender or ethnicity grounds to make up for historic lack of opportunity? And what can employers do and not do to improve diversity in their shortlists or hiring slates?

 

What is positive action?

Positive action in the workplace involves taking targeted steps to address underrepresentation or disadvantage experienced by people with characteristics protected by the Equality Act 2010 (EqA): race, sex, ethnic origins and so on. It is about ensuring equality of opportunity for people in protected groups. Positive action is not the same as positive discrimination, which is unlawful in the UK (apart from in relation to disabled people and, to some extent, women who are pregnant or who have given birth).

Initiatives involving positive action generated mainstream interest following the introduction of gender pay gap reporting, as companies looked for ways in which they could close stubborn pay gaps. Such programmes are seeing renewed interest in the wake of the Black Lives Matter movement. Leaders of FTSE 100 companies recently wrote to the Sunday Times to pledge that they would set targets for diverse candidate slates for all their vacancies in future to address racial inequality at work.

The legal framework for positive action is much more restrictive than many people realise, however, and does not necessarily allow employers go as far as they might like in addressing historic barriers and lack of opportunity.

 

What is the law on positive action?

The starting point is s158 of the EqA, which applies where an employer reasonably thinks that a protected group:

  • suffers a disadvantage (including legal, social or economic barriers to accessing employment opportunities);
  • has particular needs (e.g. IT training needs or needs in relation to the English language); or
  • does not participate enough in an activity (including employment and training).

 

Section 158 allows proportionate positive action to meet the relevant needs, reduce the disadvantage or increase participation. The Employment Code of Practice published by the Equality and Human Rights Commission (EHRC) gives the example of a school that decides to offer open days to members of the Bangladeshi community to encourage them to consider applying for teaching roles, given their low rates of participation in the teaching profession.

Section 159 of the EqA, known as the ‘tie-breaker’ provision, allows employers to go one step further in recruitment and promotion decisions when there is a stalemate between two candidates. It allows employers to give preferential treatment to a candidate from an underrepresented group, provided that:

  • they are ‘as qualified’ to be recruited or promoted;
  • granting the preference is proportionate; and
  • there is no policy of automatically granting a preference.

 

A Supplement to the EHRC’s Employment Code of Practice (which deals with positive action) gives the example of a counselling service for teenagers that has no Muslim employees, but is in an area with a high Muslim population. Where a vacancy arises, two candidates of equal merit are in a tie-break situation with the employer having to find some way to choose between them. One candidate is Muslim and the other candidate is not. The service manager could choose to offer the job to the Muslim candidate, assuming this is proportionate and the employer does not have a policy of treating that group more favourably in connection with recruitment or promotion. This would mean that the non-Muslim candidate could not claim discrimination.

While the EHRC has published various guidance on positive action, there is limited case-law. The few cases that address workplace positive action are almost entirely at European level. There is one recent Employment Tribunal (ET) decision on the tie-breaker provision (discussed below), but no binding authorities from any higher UK court. The Supreme Court is, however, currently considering a case about whether social housing can be reserved exclusively for members of a religious community which raises questions about positive action measures taken by charities and whether they are analogous to workplace measures.

Taking the legislation, existing guidance and limited case-law into account, we have distilled the following guiding principles for employers adopting positive action programmes.

 

Principle 1: you need evidence of underrepresentation

Positive action which seeks to benefit people from protected groups over others can only be done if you, as the employer, reasonably believe that a protected group suffers a disadvantage, has specific needs or does not participate enough in an activity.

Establishing underrepresentation or disadvantage has not been especially difficult or contentious in the limited case-law to date, perhaps because it is all too often apparent, but it is important not to overlook or sidestep this requirement.

Demonstrating that women are underrepresented in senior management positions may be relatively straightforward and is likely to be supported by your gender pay gap data. Establishing that ethnic minorities are underrepresented may be trickier. It is likely to involve an initial drive to gather ethnicity data within the workforce along with other contextual data – for example, about your local region. It is unclear whether you can simply look at the position of all black, Asian and minority ethnic (BAME) employees compared to white employees, or if a more granular analysis would be required. (A similar issue arises in relation to the proposal to introduce ethnicity pay reporting.)

 

Principle 2: you can’t offer employment automatically on basis of a protected characteristic

Employers cannot reserve positions for underrepresented groups without this leading to discrimination against other candidates who would have been appointed except for their protected characteristics. It is unlawful to refuse to appoint a candidate because they have the ‘wrong’ protected characteristic, apart from in the very rare scenario where having a protected characteristic is an occupational requirement for the role. This restricts the scope for applying any preference.

The furthest you can go is to apply a preference in a tie-breaker situation, where you have two equally-qualified candidates for a position. Even in those circumstances, however, you cannot have a policy of automatic preference: there must be some individual case-by-case assessment and a proportionality analysis.

The ET case Furlong v Chief Constable of Cheshire Police, decided in 2019, concerned Mr Furlong, a white, heterosexual man, who applied for the position of police constable with the Cheshire Police. He was unsuccessful because the police chose to give automatic preference to all LGBT, BME and female candidates who achieved a pass mark. The ET upheld his claim of race, sex and sexual orientation discrimination, ruling that the police’s positive action programme fell outside the scope of the s159 tie-breaker provision. The police had applied a blanket automatic preference, but the qualitative assessment data showed that not all candidates who passed were equal: in fact, some were clearly much better qualified than others. The ET found that this was not a proportionate way of improving diversity.

In our experience, most employers are reluctant to use the tie-breaker provision. This is mainly because of the need to conclude that two candidates could do a job equally well, and the fact that an unsuccessful candidate is likely to challenge that conclusion. This is, perhaps, especially probable in circumstances where the unsuccessful candidate has come very close to being appointed but has lost out because of their gender or ethnicity etc – particularly if both candidates are existing employees applying for a promotion who know each other’s strengths and qualities. In the absence of case-law explaining how close a call it needs to be between the two candidates, most employers tend to shy away from using the tie-breaker provision altogether.

Ultimately, UK law does not allow candidates from underrepresented groups to be preferred over other better qualified candidates. Recruitment and selection outcomes need to be merit-based, except in the narrow and uncertain tie-breaker situation.

In practice, this has led to a focus on changing the diversity profile within more junior or entry-level positions, where it may be easier to influence the talent pool. As roles get more senior, positive action may be less effective because of the lack of diversity in the existing talent pool with the necessary experience; the net result often being that the pace of change feels too slow.

This can be especially frustrating for companies that have reported significant gender pay gaps and come in for heavy criticism as a result, especially when such gaps are often misunderstood to signify pay discrimination. If ethnicity pay reporting is introduced, companies can expect similar pressure to demonstrate faster change. It is important, however, that this sense of frustration does not lead to taking the sort of discriminatory measures adopted by the Cheshire Police in Mr Furlong’s case.

 

Principle 3: you can take proportionate action to help people get access to employment

There is a crucial distinction between offering employment and putting someone onto an equal footing to get access to employment. Positive action is lawful when it is designed to put underrepresented or disadvantaged groups into a position of equal opportunity, there is sufficient evidence of disadvantage or underrepresentation and your steps are proportionate.

Examples of such measures include training, sponsorship, mentoring or accelerator programmes, outreach work in selected schools, and holding open days for particular cohorts. You can target your measures primarily at the underrepresented group, or potentially even exclusively at that group where that is a necessary and proportionate means of achieving your objectives.

To demonstrate that your positive action programme is proportionate, you will need to make sure that it is time-limited, targeted, and takes account of the extent of the underrepresentation or disadvantage and the impact of any other diversity measures or commitments.

 

Principle 4: improving diversity of shortlists is effective, but you should set targets not quotas

Including multiple women on shortlists for recruitment and promotions was listed as the first effective action employers could take to close their gender pay gap in a 2018 report published by the Behavioural Insights Team of the Government Equalities Office (GEO). Some employers are now looking to increase the ethnic diversity of their shortlists in addition to trying to make them more gender-balanced.

There is no reported UK case-law on this type of measure. Reserving places on shortlists is intended to give people an equal opportunity of getting the job, rather than to influence the eventual employment decision, so at first sight it should fall within our principle 3 above. The limited case-law of the European Court of Justice about guaranteed interview schemes indicates that it might regard reserving places on shortlists as different from employment quotas, and potentially lawful if proportionate.

The EHRC has, however, adopted a strong stance against guaranteeing places on shortlists. Its guide to increasing diversity in the TV and broadcasting industry (updated in March 2019) states:

‘Under British law, places cannot be reserved on shortlists or guaranteed interviews offered to some people from certain protected groups…as this would unlawfully discriminate against others (unless the recruitment relates to a disabled person).’

Nonetheless, operating targets (as opposed to hard quotas) would be within the scope of the provisions on lawful positive action discussed above, so long as there is sufficient evidence of disadvantage and the steps are proportionate. With a target-based approach, you are compiling the shortlist based on merit rather than giving preferences to ensure that a quota is met.

Targets need to be realistic and based on an assessment of the underlying market. As the EHRC’s six-step guide to improve board diversity states, targets must not lead to candidates from underrepresented groups being preferred over other better qualified candidates, and you should make clear to your recruiters that they must not unlawfully discriminate against potential or actual candidates in trying to achieve them.

In reality, of course, targets are more easily set than met. You may need to take other steps to help develop a pipeline of potential candidates and work with a range of recruiters who can help you source a more diverse pool. It may be helpful to talk about aiming for a better gender or ethnic balance, rather than the need to identify suitable female/BAME candidates, and to explain the purpose behind adopting targets and how diverse companies perform better.

 

Principle 5: some effective tactics don’t count as positive action and are always lawful

Chapter 12 of the EHRC’s Employment Code of Practice points out that action to benefit a particular protected group which does not have any impact on other groups is always lawful, and shouldn’t even be classed as positive action. The Code gives two examples of this: placing adverts in magazines read by particular groups alongside national media, and auditing selection criteria to remove any discrimination.

A more modern-day example might be working with charities who will help identify and put forward candidates from particular groups or backgrounds. This does not restrict applications from any other candidate, so long as all your other recruitment channels remain open. Another example would be reworking your recruitment processes to improve transparency about what is expected and what ‘good’ performance looks like: i.e. what you will be looking for candidates to demonstrate and how you’re going to test that.

The GEO Behavioural Insights Team report mentioned above also cites the following actions as being shown to be effective in reducing the gender pay gap:

  • using skills-based assessment tasks in recruitment
  • structured interviews
  • transparency over salary ranges and promotion processes
  • appointing diversity managers and/or diversity taskforces.

 

Everyone stands to benefit from these measures, so they are lawful without having to meet the criteria set out in s158 of the EqA.

 

Summing up

The law in the UK on positive action remains unclear in several important respects and there is very limited case-law. While the tie-breaker provisions remain unattractive, employers can adopt effective and lawful positive action programmes ranging from diverse candidate shortlist targets through to targeted support and development initiatives. Some measures benefit everyone, so do not need to come within the legal exemption for positive action. Despite this, it remains the case that the legal framework is heavily restricted and does not necessarily allow employers to move as far or as fast as they would like.

 

Podcast: How positive is the law? Positive discrimination in the workplace

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