By JORGE LUIZ SOUTO MAIOR*
Racism at the base of work in conditions analogous to slavery
Some data on the situation of black male and female workers in Brazil
As shown by IBGE statistics, 54% of the Brazilian population is black. In view of this information, and considering the scope of this hearing, it is important to ask: where are these Brazilian citizens and what are they doing?
Well then. Let's look at some data about it.
(1) In the Seminar Racial Issues and the Judiciary, organized by the National Council of Justice (CNJ), in June 2020, an attempt was made to answer the question: “Why are blacks the majority in Brazilian penitentiaries?”. The event highlighted the existence of a “veiled racism that makes blacks already considered criminals, even before being prosecuted” and presented the information that “practically the entire prison population in Brazil is black”.
Still at the same event, Washington Clark dos Santos, deputy general director of Depen “emphasized that black people receive harsher sentences when they commit the same crimes as white people”. Edinaldo César Santos Junior presented data from a survey by the Public Agency for Investigative Journalism in São Paulo, which showed that the amount of marijuana seized from white people is, on average, greater than from black people (1,15 kg versus 145 grams). However, blacks are the most condemned (71,35% against 64,36% of whites). This happens in the seizure of all types of narcotics. 'Whites end up being classified as users while blacks as drug dealers', he explained” (https://www.cnj.jus.br/o-encarceramento-tem-cor-diz-especialista/).
(2) There are recurrent cases of black people who lose their right to freedom by committing a theft, even of small value or to get food. In 2021, a black woman, mother of five children, was held prisoner by decision of the TJ-SP, for having stolen a package of noodles from a supermarket, worth R$ 21,69 (https://www.band.uol.com.br/noticias/brasil-urgente/ultimas/justice-maintain-prey-mother-who-stole-r-2169-in-supermarket-food-16453607).
(3) In the last year, according to the Yearbook of the Brazilian Public Security Forum (FBSP), the number of police killings of black people increased by 5,8%. Between 2020 and 2021, blacks and browns accounted for 84,1% of victims of police interventions, which reflects in 54% of Brazilians. In the case of white people, the number of deaths fell by 30,9% in the same period, according to the survey (https://pt.org.br/negros-sao-84-das-pessoas-mortas-em-acoes-policiais-no-brasil/).
(4) According to an assessment made by the IBGE, the average income of a white worker is 75,7% higher than that of a black worker and 70,8% higher than that of a brown worker. (https://www.infomoney.com.br/carreira/renda-media-de-trabalhador-branco-e-757-maior-do-que-de-pretos-diz-ibge/).
Along the same lines, research carried out by the Brazilian Association of NGOs (Non-Governmental Organizations – Abong) demonstrates that the remuneration and positions occupied by blacks and whites in civil society organizations are quite discrepant. According to the survey, based on information from the Annual Social Information Report (Rais), of the Ministry of Economy, from 2015 to 2019, calculated in the 27 Brazilian capitals, in 2019, black people earned on average 27% less than whites in NGOs. “Among people who received, in 2019, more than 20 minimum wages in NGOs, 44,42% were white men; 31,45% white women; 12,97% black men; and 10,01% black women”. (https://agenciabrasil.ebc.com.br/economia/noticia/2020-12/estudo-expoe-diferenca-de-salarios-entre-negros-e-brancos-em-ongs)
(5) Report by Renata Coutinho, published in Revista Carta Capital, brings research data from the Ethos Institute, according to which “only 1,6% of the management and 0,4% of the executive staff of the companies with the highest national prominence are composed of black women, in outsourced work are the majority”, whereas, at Sindilimpeza, 80% of the cleanliness and maintenance category is made up of women, 90% of them black or brown women, always 'chosen' for the most precarious activities”. (https://www.cartacapital.com.br/carta-capital/terceirizacao-tem-cara-e-preta-e-feminina/)
(6) This inequality is also pronounced in the banking sector: "Black bank employees (which include blacks and browns) earn 24% less than their white counterparts. Black employees of financial institutions have an average income 27,3% lower than the average income of whites. And black women suffer even more discrimination, earning 59% less than the average white man”. (https://spbancarios.com.br/11/2022/diferenca-salarial-entre-brancos-e-negros-chega-59-nos-bancos)
(7) Even at the level of those who do not display the formal status of employees, captured by the entrepreneurship discourse, racial differences remain, because “while black entrepreneurs had an average monthly income of R$ 2.079 in the second quarter of 2022, the whites earned R$3.040. That is: the income of black entrepreneurs is on average 32% lower than that of white entrepreneurs”. Considering gender, “black women have the lowest income among entrepreneurs, of BRL 1.852, compared to BRL 2.188 for black men, BRL 2.706 for white women and BRL 3.231 for white men, shows the Sebrae survey ”. (https://www.bbc.com/portuguese/brasil-64477594)
(8) Also in the public sector this odious differentiation remains, so much so that only on March 21 of this year, the Brazilian State took the first step towards its mitigation, setting a minimum reserve of 30% of positions of trust for occupation by black people (https://www.gov.br/planalto/pt-br/acompanhe-o-planalto/noticias/2023/03/governo-determina-reserva-de-30-de-trust-cargos-for-black-people).
(9) As a result, in the fourth quarter of 2020, the Continuous National Household Sample Survey (Continuous PNAD) by the Brazilian Institute of Geography and Statistics (IBGE) revealed that “blacks represent 72,9% of the unemployed in the country, a total of 13,9 million people in this situation” (https://www.correiobraziliense.com.br/euestudante/trabalho-e-formacao/2021/03/4913182-pretos-no-topo-desemprego-recorde-entre-negros-e-resultado-de-racismo.html).
Racism at the base of work in conditions analogous to slavery
And why bring all this data right now? To demonstrate that the object of our debate here today, the regulation of art. 243 of the Federal Constitution, through a new law, is not merely a question of legislative technique, but a racial issue.
After all, structurally linked to all the data presented above, the reality is that “blacks are 84% of those rescued in work similar to slavery in 2022”. (https://www.brasildefato.com.br/2022/05/13/negros-e-pardos-sao-84-dos-resgatados-em-trabalho-analogo-a-escravidao-em-2022#:~:text=Negros%20s%C3%A3o%2084%25%20dos%20resgatados%20em%20trabalho%20an%C3%A1logo%20%C3%A0%20escravid%C3%A3o%20em%202022).
It should also be noted that slave labor begins with child labor, maintaining a close relationship between the two, and, obviously, the largest number of children (from the age of 5) subjected to this violence are black (https://livredetrabalhoinfantil.org.br/especiais/trabalho-infantil-sp/reportagens/trabalho-infantil-negro-e-maior-por-heranca-da-escravidao/).
This, first, obliges us to remember that Brazil was the last country in the world to legally abolish slavery, without having carried out any public policy of compensation and inclusion of former slaves and, second, in imposes a reflection on the real reasons why, until today, in 2023, we are, in a public hearing in the Federal Senate, “debating” a regulation that can punish people and entities for committing the act, already defined as a crime, of exploiting workers and female workers in conditions analogous to slavery.
By the way, it should be remembered that the inspection of “slave” work in rural areas was only expressed institutionally as such from 1994, through the edition of Normative Instruction n.o. 24, and expanded in 1995, with the creation of the Special Group for Mobile Inspection, of the Ministry of Labor, and this only happened because, in 1993, the International Labor Organization (ILO), released a report that brought data related to 8.986 complaints of slave labor in Brazil. The more ostensive and organized presence of the State in rural areas was not very well received and this led, on January 28, 2004, to the murder of three inspectors and a driver, an employee of the Ministry of Labor, in Unaí/MG.
And since then, attempts have been made to legally fix punishments for those who practice this criminal and hateful act. It is true that there have been many efforts to try to fix these legal effects.
The so-called slave labor PEC, providing for the confiscation of land where work in these conditions was verified, was proposed for the first time in 1995, in the Chamber of Deputies, reaching the Senate in 1997. In the face of numerous resistance, it only reached approval end of the PEC in 2014, generating the Constitutional Amendment no. 81, of June 5, 2014, which gave the current wording of art. 243 of the Federal Constitution, with the following content: “Rural and urban properties in any region of the country where illegal cultures of psychotropic plants are located or the exploitation of slave labor under the terms of the law will be expropriated and destined for agrarian reform and popular housing programs, without any compensation to the owner and without prejudice of other sanctions provided for by law, observing, where appropriate, the provisions of art. 5th. Single paragraph. Any and all assets of economic value seized as a result of the illicit traffic in narcotics and related drugs and the exploitation of slave labor will be confiscated and will revert to a special fund with a specific destination, in accordance with the law”.
In the midst of this clash, in 2003, Law no. 10.803, of December 11, 2003, which amended art. 149 of the Penal Code: “Reducing someone to a condition analogous to that of a slave, either subjecting him to forced labor or exhausting workdays, or subjecting him to degrading working conditions, or restricting, by any means, his movement due to a debt contracted with the employer or agent :
Penalty – imprisonment, from two to eight years, and a fine, in addition to the penalty corresponding to the violence.
§ 1o In the same penalties incurs who:
I – restricts the use of any means of transport by the worker, in order to retain him at the workplace;
II – maintains ostensive surveillance in the workplace or takes possession of documents or personal objects of the worker, in order to retain him in the workplace.
§ º 2 The penalty is increased by half if the crime is committed:
I – against a child or adolescent;
II – due to prejudice based on race, color, ethnicity, religion or origin”.
We don't lack laws
Articles 243 of the Federal Constitution and 149 of the Penal Code leave no room for doubt as to their content and do not require any type of regulation to be effective, even more so when one remembers that such provisions are fully supported by several other constitutional and legal provisions.
(i) In the Federal Constitution: (a) “Art. 1th A Federative Republic of Brazil, formed by the indissoluble union of the States and Municipalities and the Federal District, constitutes a Democratic State of Law and has as its fundamentals: (....)III – the dignity of the human person; IV – the social values of work and free initiative;
(B) “Art. 3 The fundamental objectives of the Federative Republic of Brazil are: I – to build a free, just and solidary society; II – ensure national development; III – eradicate poverty and marginalization and reduce social and regional inequalities; IV – to promote the good of all, without prejudice of origin, race, sex, color, age and any other forms of discrimination”.
(C) “Art. 5 Everyone is equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, freedom, equality, security and property, in the following terms: XXIII – the property will fulfill its social function”;
(D) “Art. 7 The rights of urban and rural workers, in addition to others aimed at improving their social condition:" (article which, it should be noted, is included in Title II - fundamental rights and guarantees)
(E) "Art. 186. The social function is fulfilled when the rural property serves, simultaneously, according to criteria and degrees of demand established by law, to the following requirements: (...) III – observance of the provisions that regulate labor relations; IV - exploitation that favors the well-being of owners and workers".
(f) “Art. 170. The economic order, founded on the appreciation of human work and free initiative, aims to ensure a dignified existence for all, in accordance with the dictates of social justice, observing the following principles: (….) III – social function of property”;
(2) In the Civil Code:
(a) “Art. 186. Anyone who, by voluntary action or omission, negligence or recklessness, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act.”
(B) “Art. 187. The holder of a right that, when exercising it, manifestly exceeds the limits imposed by its economic or social purpose, by good faith or by good customs, also commits an unlawful act.”
(C) “Art. 927. Anyone who, through an unlawful act (arts. 186 and 187), causes damage to others, is obliged to repair it.
Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the author of the damage implies, by its nature, a risk to the rights of others.”
(D) “Art. 944. Indemnity is measured by the extent of the damage.”
(3) In the Code of Civil Procedure:
(a)“Art. 789. The debtor responds with all his present and future assets for the fulfillment of his obligations, except for the restrictions established by law."
(B) “Art. 824. Enforcement for a certain amount is carried out by expropriating the debtor's assets, with the exception of special executions."
4) In the Penal Code:
(a) “Art. 197 – Embarrass someone, through violence or serious threat: I – to exercise or not to exercise art, trade, profession or industry, or to work or not to work during a certain period or on certain days: Penalty – detention, from one month to one year , and a fine, in addition to the penalty corresponding to the violence;
II – to open or close their workplace, or to participate in a wall or stoppage of economic activity: Penalty – detention, from three months to one year, and a fine, in addition to the penalty corresponding to the violence.”
(B) “Art. 198 – Constraining someone, by means of violence or serious threat, to enter into an employment contract, or not to supply or acquire raw materials or industrial or agricultural products from others: Penalty – detention, from one month to one year, and a fine , in addition to the penalty corresponding to the violence.”
(C) “Art. 199 – Constraining someone, through violence or serious threat, to participate or not to participate in a certain union or professional association: Penalty – detention, from one month to one year, and a fine, in addition to the penalty corresponding to the violence.”
(D) “Art. 203 – Frustrating, through fraud or violence, a right guaranteed by labor legislation: Penalty – detention from one year to two years, and a fine, in addition to the penalty corresponding to the violence. (Amended by Law No. 9.777 of 29.12.1998). § 1 The same penalty incurs who: (Included by Law No. 9.777 of 1998) I – obliges or coerces someone to use goods from a certain establishment, to make it impossible to disconnect from the service due to debt; (Included by Law No. 9.777 of 1998).
II – prevents someone from disconnecting from services of any nature, through coercion or through retention of their personal or contractual documents. (Included by Law No. 9.777 of 1998). § 2 The penalty is increased by one-sixth to one-third if the victim is under eighteen years of age, elderly, pregnant, indigenous or physically or mentally handicapped. (Included by Law No. 9.777 of 1998).
(E) “Art. 207 – Enticing workers, with the aim of taking them from one location to another in the national territory: Penalty – detention of one to three years, and fine. (Amended by Law No. 9.777 of 29.12.1998). § 1 The same penalty applies to anyone who recruits workers outside the location where the work is to be carried out, within the national territory, through fraud or by charging any amount from the worker, or who does not ensure conditions for their return to their place of origin. (Included by Law No. 9.777 of 1998). § 2 The penalty is increased by one-sixth to one-third if the victim is under eighteen years of age, elderly, pregnant, indigenous or physically or mentally handicapped. (Included by Law No. 9.777 of 1998)".
(5) In the Criminal Procedure Code:
(a) “Art. 124. The instruments of the crime, whose loss in favor of the Union is decreed, and the confiscated things, in accordance with the provisions of art. 100 of the Penal Code, will be destroyed or taken to a criminal museum, if there is an interest in their preservation.”
(B) “Art. 91 - The effects of the conviction are: (Amended by Law No. 7.209 of 11.7.1984) I – make certain the obligation to indemnify the damage caused by the crime; (Amended by Law No. 7.209 of 11.7.1984) II – the loss in favor of the Federal Government, except for the right of the injured party or of a third party in good faith: (Amended by Law No. 7.209 of 11.7.1984) (a) the instruments of the crime, provided that they consist of things whose manufacture, sale, use, possession or possession constitutes an unlawful act; (b) the proceeds of the crime or any asset or value that constitutes profit earned by the agent with the commission of the criminal act.”
It should also be noted that, according to the lessons of the civil jurist Caio Mário da Silva Pereira, in the context of the legal order encompassed by Human Rights, the legal protection of fundamental and personality rights does not depend on delimitations established by law. The protection of the rights to life, dignity and physical and moral integrity, of which all people, without distinction, are entitled, does not depend on a law that enshrines it.
The persistence and even increase of violence
Despite all this normative set, criminal convictions for the crime provided for in art. 149 of the CP and almost never the eventual (and very rare) conviction results in effective imprisonment, since, as Sakamoto points out, the penalties “tend to be low, generating the fulfillment of the sentence in a regime other than the closed one or even the replacement of imprisonment by the restrictive penalty of rights” (https://www.conjur.com.br/2020-jan-22/aplicacao-rara-artigo-juiz-condena-prisao-trabalho-escravo).
And, despite the intense action of the Ministry of Labor, the Public Ministry of Labor and also the Labor Court, promoting rescues and condemnations of the payment of evaded labor rights and compensation, work in conditions analogous to slavery has only increased in recent years. , this was also influenced by the approval of the labor “reform”, with the expansion of outsourcing, in 2017, which, in addition to lowering labor legal protection and imposing obstacles to access to justice, also gave employers a feeling of impunity and power unlimited, which was further strengthened by the policies and values set out by the Bolsonaro government, which even began its term by extinguishing the Ministry of Labor.
It never hurts to remember that outsourcing is closely linked to slave labor, as the precariousness of working conditions and the strengthening of impunity are the reasons that move those who take advantage of the promoted intermediation. And the strategy, by the way, has worked, so much so that, although several large companies have already been linked to slave labor, none of them are on the “dirty list”, with 174 names, organized by the Ministry of Labor, explaining only natural persons and small and medium-sized legal entities, many of them certainly intermediaries of labor (https://www.gov.br/trabalho-e-previdencia/pt-br/composicao/orgaos-especificos/secretaria-de-trabalho/inspecao/areas-de-atuacao/cadastro_de_empregadores.pdf).
The result is that, in 2022, 2.575 people were found in a situation similar to that of being enslaved, this being the “highest number since the 2.808 workers in 2013, according to information from the Ministry of Labor and Employment”. And with that, Brazil reached “60.251 workers rescued since the creation of special mobile inspection groups, the basis of the system to combat slavery in the country, in May 1995.” (https://reporterbrasil.org.br/2023/01/com-2-500-vitimas-em-2022-brasil-chega-a-60-mil-resgatados-da-escravidao/)
And it is not that the State is not effective when it wants to, for the protection of the white population, especially as consumers: “Health Surveillance banned 40 establishments in the first four months” – Brasília, 06/05/2021 (https://www.saude.df.gov.br/web/guest/w/vigilancia-sanitaria-interditou-40-estabelecimentos-no-primeiro-quadrimestre).
On March 27 of this year, upon verifying that the raw material used in the manufacture of some products, Anvisa suspended the manufacture, sale, distribution and use of all Fugini brand foods, produced by the company Fugini Alimentos Ltda. (CNPJ 00.588.458/0001-03) at its factory located in Monte Alto (SP).
However, there is no news of a ban on an establishment where exploitation of work in conditions analogous to slavery was found or a ban on the sale of goods or raw materials produced with this type of work. The wines produced with slave labor continued to be marketed and consumed freely and the wineries acted.
what we lack
All this added up, the only conclusion that can be reached is that the complete eradication of slave labor (which goes far beyond the “combat”) is not a problem of lack of laws.
The approval of a law that seeks to overcome resistance to the application of art. 243 of the Federal Constitution, such as the one announced in PL 5.970/2019, authored by Senator Randolfe Rodrigues, may be important, but it is far from being enough, not least because, as can be reasonably foreseen, without a true will, disseminated among all people and institutions arising from full indignation with this situation, new arguments, supposedly legal, for not applying the law, will be produced and accepted.
The Bill in question itself, when dealing with expropriation, seems to want to guarantee the right to property more than to compensate for the damage and suffering experienced by the enslaved, in such a way that an expropriation of land for committing this crime, following all the proposed procedures, which make no mention of anticipatory measures of a preventive and even punitive nature, would only come to fruition five (to be very optimistic) or ten years after the law came into force.
The fact is that without an authentic social and institutional commitment, we will continue not to apply with the necessary rigor all the legal effects applicable to this heinous crime and, thus, taking the pain of the “slaver” more than that of the enslaved. .
In this sense, it is important, above all, to realize that the indemnities imposed on companies whose production is linked to work in conditions analogous to slavery have been extremely modest and end up preserving the rights of property and undertaking unscathed, while the violated right to life remains in background, naturalizing, in a way, the enslavement of black bodies.
About commercial restrictions, with the collection of goods produced under these conditions, and the interruption of production, we don't even hear about it. In addition, many of the large companies caught producing production based on slave labor are financed at subsidized interest rates by the State and, even after the criminal act has been made explicit, they continue to receive such favour. (https://www.brasil247.com/regionais/sul/vinicolas-gauchas-ligadas-a-trabalho-escravo-tem-r-66-milhoes-em-emprestimos-ativos-no-bndes)
What we lack, therefore, is something that goes far beyond the elaboration and approval of laws (which are obviously important).
The historical and institutionalized resistance to the imposition of effectively rigorous and more effective legal effects against the slave owner and the companies that make economic and structural use of this crime, acting, therefore, at the very least, as co-authors, leads us to the expression coined by the doctor in psychology Maria Aparecida da Silva Bento, Cida Bento, in the sense that a “narcissistic pact of whiteness” was established in Brazilian society. Making reference to the mythical figure of Narciso, famous for being passionate about the representation of his own image, the expression reveals the commitment of white people to maintain the structure of oppression and racial inequality, because in this way they can continue to preserve themselves and privilege themselves.
We therefore need to reflect on whether what moves us – the overwhelming white majority in the centers of power (which is, in itself, proof of historical and structural slavery) – is effectively a technical-legal problem.
An attempt is made to justify the delay in promoting a concrete expropriation of land and in bringing a slave owner to prison for the care that must be taken to avoid excesses and prevent judicial errors. However, we are not bothered by the excesses, judicial errors, discrimination and oppression that proliferate against the black population, as well as the fact, internationally recognized, that Brazil continues to be marked by the scourge of slave labor.
We are already extremely late in fulfilling this obligation and it is therefore necessary and urgent not to hesitate any longer. With or without specific regulation, it must be an absolute priority, truly assumed, the agenda of eradicating from our daily lives the practices, committed in the name of economic efficiency, the disregard of black lives and the expendability of the male and female worker.
And, for that, a fundamental step is to give effect to another law (also already in existence), which is Law nº 10.639/2003, which determines the inclusion, in the official curriculum of the Education Network, of the theme “Afro-Brazilian History and Culture -Brazilian". In order to break with racist, colonial and slave-owning ideas, it is very important that this legislation is actually applied.
Finally, dealing more specifically with Bill No.o. 5.790/2019, it is essential to establish the competence of the Labor Court to declare and impose the legal effects of work in conditions analogous to slavery, including preventive, inhibitory and expropriatory measures, always remembering that enslaved people were not respected, in this case concretely and historically, fundamental rights and the final and unappealable decision was not guaranteed.
It is also necessary to warn that in this matter, as in any other related to Human Rights and Social Rights, it is not possible to go back. Thus, no legal provision, under the pretext of making the configuration of modern slave labor more explicit or promoting “legal security” for businesses (as they say), can reduce the level of legal protection already established in the aforementioned norms, or go to the point of making it practically impossible to configure the crime and produce effects effectively proportional to the gravity of the fact, not least because this form of regulation (ambiguous and ineffective) ends up legitimizing and, with this, also encouraging, the exploitation of labor in conditions that demean the human condition of those who, out of necessity, depend on work to survive and who, tragically, are increasingly present in our reality, given that this has been the fate reserved for the black population.[1]
*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors).
Base text of the speech given at the public hearing held at the Human Rights Commission of the Federal Senate, on 29/03/23.
Note
[1] I thank the Human Rights Commission of the Federal Senate and, in particular, Senator Paulo Paim, for the invitation to participate in this important event.
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