The mandatory identification of the ethnic and social segment in the hiring of employees under the General Law of Data Protection (LGPD) and the principle of non-discrimination.
Recently published Law No. 14.553of April 20, 2023, regulates procedures for the collection of information about the distribution of different ethnic and racial groups in the Brazilian labor market. According to this law, it is necessary that the employee records include information regarding the identification of the ethnic and racial segment of the workers.
The requirement extends to a variety of documents and records, including, among others, admission and dismissal forms, work accident records, instruments of the National Employment System, the Annual Social Information Report (RAIS), documents for registering the insured and their dependents in the General Social Security System.
Although the scope of the law is to obtain data and information aimed at promoting racial equality, allowing public policies and employment practices to be more effective in promoting diversity and racial equality, some aspects should be highlighted as they may attract risks to employers.
In this context, it is worth noting, ab initio, que the legal requirement applies only to the moment the employee is admitted and not to his or her application for employment.
Indeed, applying for a job is the beginning of a process of recruiting and selecting a job applicant.
The job application form, if any, comprises information of a personal, professional and academic nature that aims to assist the employer in evaluating the candidate's suitability for the job vacancy, such as previous professional experiences, academic training, skills and competencies. The aforementioned form or the request to send the candidate's resume shall collect only information essential to the requirements of the position, meeting the principle of necessity provided for in the LGPD (Law No. 13,709/2018), at this stage.
Thus, as a rule, at the time of applying for a job, no sensitive personal data is requested, except for specific vacancies aimed at promoting diversity and inclusion.
In light of the necessity principle (one of the axiological frameworks of the LGPD), data collection should be restricted to the minimum required to carry out the proposed purposes. Companies, in the process of selecting an employee, must ensure that they are collecting only the data that is strictly necessary to achieve the stated purposes.
The documents related to the actual hiring (filled out when the candidate has already been selected for the position) require documents that usually incorporate information necessary for the employee's registration at the company, such as details of the employment contract, bank information for the deposit of the salary and, with Law 14,553, will now include the racial-ethnic self-classification of the new employee (sensitive personal data).
In this new legislative context, based on the principle of purpose (also essential to the LGPD), the collection and processing of personal data must be for legitimate, precise, clearly defined purposes, and communicated in advance to the data subject. This axiom, combined with that of non-discrimination, ensures that the processing of employee personal data is not used for discriminatory, unlawful or abusive purposes. Non-discrimination is vital to fostering a fairer, more inclusive society where all individuals are treated with respect, dignity and equal opportunity.
Considering, therefore, the duty of information of the processing agent towards the holder of the personal data, it is of utmost importance that the collection of data on the employee's ethnic and racial segment is not performed, it is reiterated, when the employee applies for a job, but only when he/she is hired. The employer, moreover, must inform in a transparent manner, with clear language and in an appropriate manner that the purpose of such collection is to comply with a legal obligation imposed by Law No. 14,553 of 2023.
Information regarding racial or ethnic origin is considered sensitive personal data (Article 5, item II, of the LGPD). And, because it is a mandatory collection, the legal basis for the processing of such data should be compliance with a legal or regulatory obligation by the controller (art. 11, II, item a, da LGPD).
Ao fim e ao cabo, e, em apertada conclusão, a determinação legal contida na Lei 14.553/2023, é explícita à coleta de dados étnicos e raciais somente na admissão do empregado. Os dados não podem ser exigidos nacandidaturato employment, as they may inadvertently lead to discrimination (even if unintentional) in the selection and recruitment process, in addition to resulting in excessive and unlawful processing of personal data (violation of the LGPD), offense to the principle of non-discrimination and affront to art. 1, caput, da Lei 9.029/1992 e art. 7º, XXXIII, da CRFB/88.
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