By Christian F. Rosa and Beatriz Wehby – 07/21/2020

The issue of diversity has gained widespread attention. It is necessary to give visibility to the struggles of minorities and vulnerable groups who, in a democracy, must have their rights ensured in an equitable manner. In article 3 of the Brazilian Constitution of 1988, we declare as a fundamental objective of the Republic the promotion of “the good of all, without prejudice of origin, race, sex, color, age or any other form of discrimination.”

This decision by the Constituent Power, to combat prejudice, from this article 3, emanates a series of other predictions such as those in article 5, items I, VI and X, respectively on gender equality, freedom of belief and protection of privacy, just to mention the first normative developments.

Inclusion, in turn, is a frequently debated topic, as it presupposes the recognition and promotion of an environment that is favorable to differences. The Universal Declaration of Human Rights of 1948 itself, in its Article 1, states that “all human beings are born free and equal in dignity and rights.” The observance of these human rights – and of diversity, as an outcome – involves the recognition of the individual in various dimensions, such as gender, ethnicity, sexual orientation, gender identity and religion, among many others, and it is precisely these characteristics that make each human being unique. Inclusion presupposes the acceptance of this diversity of identities.

Under international guidelines and in line with our constitutional framework, Brazilian law has been advancing in order to promote the protection of the rights to exercise one's identity and combat discrimination. The legislation and the Superior Courts have consistently provided legal instruments for the effectiveness of these freedoms, against prejudice and persecution.

It is in this sense that the most diverse areas of Law have been positively impacted. Labor Law, Civil Law, Administrative Law and even Tax and Consumer Law have begun to subject their regimes to the principle of non-discrimination and even the need to actively promote the protection of minorities and vulnerable groups. In this historical social conflict, Brazilian Law has chosen a side and has positioned itself in favor of diversity, as determined by the Constitution itself.

This means that private organizations – simple and business corporations, associations and foundations – must adapt to this new legal reality. This highlights the importance of a compliance system aimed at adapting operations to the new applicable legal parameters, a Diversity and Inclusion Program.

The Diversity and Inclusion Program aims to identify and ultimately support compliance with standards in the various relationships established by private entities – labor, consumer, supplier and government relations. In each of these dimensions, observing standards, legal precedents and good practices in diversity prevents the occurrence of illegal conduct and protects the operation from reputational damage, which is almost inevitable in a social media context. A mistake or a mere slip-up in terms of inclusion can mean the financial liability of the private entity and the loss of economic value of the company's intangible assets such as its brand and image in the eyes of consumers and suppliers.

To avoid the risk of associating with entities that are not very committed to diversity, large companies are increasingly demanding that their suppliers and partners maintain a public commitment to combating prejudice and promoting inclusion. And it is necessary to maintain evidence of the effective adoption and application of the program, for possible audit by these applicants.

The proper implementation of a Diversity and Inclusion Program requires a survey of the internal and external context of the organization in which it will be implemented. It requires an assessment of the expectations of the main stakeholders – such as the people in the workforce, for example. And based on the internal processes in which there is a greater risk of non-compliance with good practices, prioritize the topics that are most sensitive to that group, such as issues of gender, race or ethnicity, religious belief or practice, sexual orientation or gender identity, socioeconomic origin or class or physical build, among others. Faced with a risk matrix, typical of the implementation of a management and compliance system, the private entity can effectively promote and operationalize its commitment to inclusion, mitigating the risks of committing or tolerating any illicit biased behavior. And thus avoids exposure to sanctions and obligations to compensate, while defending its reputation.

Given these considerations, a compliance system (ISO 19600), based on risk management typical of those employed by ISO 9001 (quality), ISO 27001 (information security) and ISO 37001 (anti-bribery), can be quite useful in rationalizing this company effort, while providing the documented information, evidence necessary for an audit by potential applicants.

What is certain is that Brazilian law has been progressing to effectively promote the protection of constitutionally guaranteed rights. And risk management and compliance systems can be ideal instruments for private entities to demonstrate their commitment to a more diverse and inclusive social environment.