AS AÇÕES AFIRMATIVAS VOLTADAS PARA A INCLUSÃO DA POPULAÇÃO NEGRA NO MERCADO DE TRABALHO: UM ESTUDO DE CASO DA SELEÇÃO PARA O PROGRAMA DE TRAINEE 2021 DO MAGAZINE LUIZA À LUZ DO DIREITO CONSTITUCIONAL E TRABALHISTA

Abstract

The selection for Magazine Luiza's 2021 Trainee program allocated its vacancies exclusively to self-declared black or brown workers, in order to promote the inclusion of the black population in the company's managerial staff, since it had 53% of the black team, but only 16% of blacks in leadership positions. Contrary to this reserve of vacancies, the Public Defender of the Union, through the defender Jovino Bento Júnior, filed a Civil Civil Action against the company. The present work is a case study on the aforementioned lawsuit, based on documentary and bibliographic research, to elucidate whether the outrageous allegations that the "Trainee Magalu 2021" program violates the country's constitutional and labor standards are justified, or the adoption of affirmative policies by the Defendant only came to ensure equal work opportunities for the black population without promoting any violation of these norms. In fact, racial inequality in the Brazilian labor market is a persistent situation, as shown in official data from the IBGE (2020) and in academic studies, and although it is expressly prohibited by the Brazilian legal system, it still constitutes a reality of social exclusion against the blacks. The principle of non-discrimination is based on the Citizen Constitution, in arts. 1st, III, IV, 3rd, III, IV, 5th, caput, and item I and XLI, art. 7, XXX and XXXI, and takes place through material equality, prohibiting negative discrimination. However, when equality of opportunity is within the scope of mere formal equality, there is only the maintenance of de facto inequalities and there is indirect discrimination, barring the access of this discriminated population to work in real equality of opportunity, as determined by the constitutional and labor norms. Furthermore, the Racial Equality Statute provides, in art. 39, that the State must encourage affirmative measures by the private sector and, in art. 2nd, establishes that it is the duty of the State and society to guarantee equal opportunities and the right of everyone to participate in the community and in economic and business activities. In the same sense, art. 373-A of the CLT rules out, in a broad and explicit manner, discriminatory treatment, not only between men and women, but also with regard to age, color, family situation and pregnancy status. To prevent interpretations from reaching the absurd, the norms of inclusion of discriminated social groups cannot be used against what they themselves determine, thus, the distinction between negative and positive discrimination, for the adoption of the latter, is essential in the realization of the right to equality as a de facto equality and not a mere rhetorical discourse for which our Constitution is not proposed. In view of the facts and the law established in the records of the aforementioned process, the understanding explained by the defense, the Public Ministry of Labor and in an injunction, finds constitutional, legal and doctrinal foundation, corroborating the findings of this study and demonstrating that the selection process for Magazine Luiza's Trainee 2021 program complies with Constitutional and Labor Law.