Brazil’s Discriminatory Background Check

Can a background check be discriminatory? Well, apparently in Brazil a criminal background check can.

Brazilian law prevents employers from engaging in discriminatory work practices. Specifically, Law 9.029 prohibits discrimination based on sex, origin, race, color, marital status, and disability, among other factors.

But Brazil’s Superior Labor Court, the Tribunal Superior do Trabalho, has interpreted the law, together with other laws and the federal constitution, to include requests made to candidates for a clean criminal background report. Ultimately the court ruled that an employer can’t discriminate against potential employees who’ve been found guilty of a crime.

The decision leaves some room for confusion. For example, it’s not clear how this decision would apply to independent contractors. Similarly, it doesn’t answer whether a company can obtain the criminal background report itself rather than asking the job applicant for a copy.

There are also some job types that can require a clean criminal history because of the type of work being performed. This includes professionals such as caregivers, bankers, maids, and workers dealing with weapons or confidential information. There’s a general exception for people in positions of trust too.

Finally, there are plenty of other searches that can and should be done as part of a background check on job candidates. For instance, an employer can confirm the candidate’s identity, previous education, and employment history. These searches are common and an integral part of the hiring process.

The next time you want to hire an employee in Brazil, make sure your background check doesn’t discriminate.