Excerpted From: Taís de Barros Penteado, Terceirizadas, Centered: a Critical Analysis of Outsourcing and Gender and Racial Hierarchies in Brazil, 34 Yale Journal of Law & Feminism 246 (2023) (105 ) (Full Document)


NoPictureFemale“For example, a company can opt for having an in-house legal department or hiring an external law firm. I think it is perfectly legitimate that a law firm specialized in tax law might hire a legal opinion from another law firm specialized in tax law, even if this is its core business. I also think-- another outsourcing example--that a construction company can directly employ an engineer or can hire a firm that makes the calculation in its construction jobs.” Justice Barroso, ADPF 324

“Women do the hardest work and men the lightest. All service-providers take the most precarious poor black women.” Silvana Araújo da Silva

The first statement in the epigraph is from a Justice's opinion in the lawsuit analyzing the constitutionality of outsourcing in Brazil. The second statement is from Silvana Araújo da Silva, the leader of University of São Paulo's outsourced workers' strike. The Justice is talking about hypothetical tax lawyers and engineers being outsourced. Silvana is talking about the actual outsourced women--or, terceirizadas--and their realities. He is the law. She is the life. And they are far apart. This paper aims to bridge the gap that currently exists between law and life in outsourcing in Brazil.

Outsourcing is the business practice in which a company (“service-taker”) hires a third-party company to provide services (“service-provider”). In this arrangement, the service-providing agent (“outsourced worker”) is employed by the service-provider but works for the service-taker.

Since the 1990s, Brazil has been going through a process of “flexibilization” of labor regulations. Part of this process was the jurisprudential construction of the idea that although outsourcing was not explicitly allowed by labor law, it could be a valid work contract in some cases involving activities unrelated to the core business of a company, such as security and cleaning. Activities related to the core business of a company, on the other hand, could not be outsourced.

In 2017, the neo-liberal agenda came to the forefront of Brazil's political landscape. Because of the economic crisis that took place in 2014, Michel Temer--who stepped in after the parliamentary coup that unseated President Dilma Rousseff--proposed a series of austerity measures. The measures included cuts to education and health spending, the dismantling of social security, and the advancing of labor law reform aimed at “modernizing” the Brazilian economy. Central to this reform was the idea of flexibilization, which included the goal of legalizing outsourcing in all activities.

One of the central moves in this direction came from the Brazilian Supreme Court ruling in ADPF 324, a lawsuit that challenged the constitutionality of the doctrine adopted by labor courts prohibiting the outsourcing of core activities--activities that are central to a company's business. The majority of the court, composed by seven Justices, held that prohibiting outsourcing of core activities was unconstitutional and that outsourcing of all activities should be allowed.

The majority's reasoning was, in general lines, that outsourcing would prevent unemployment, allowing people to participate fully in the labor market, and help Brazilian companies become more competitive due to cost reductions in manpower. The court set aside arguments that outsourcing would violate workers' rights because the Justices believed that harms would arise from the abusive use of the contract, not from the contract itself. Four Justices dissented. They argued that core activities could not be outsourced, because this would violate a series of workers' rights protected under the Brazilian Constitution. However, the constitutionality of non-core activities was left untouched.

This paper presents a critical analysis of the Brazilian Supreme Court decision in ADPF 324. In Part I, I explain what I mean by critical analysis. In this paper, critical analysis refers to the adoption of a method that reflects on the law through consideration of the concrete power relations that inform and are informed by it. This method involves a radical analysis of the law, attentive to how its assumptions and categories are permeated by inequalities, even if they appear neutral at first glance. In Part II, I summarize the majority and the dissenting opinions' arguments, and Part III is devoted to the critical analysis. Regarding the majority opinion, first, I use terceirizadas as a focal point to challenge the court's neoliberal logic and its assumptions. Having terceirizadas as a point of departure shows that the neoliberal adoption of a universal individual is an abstraction that conceals how power relations operate on the ground and, in doing so, legitimates and perpetuates oppression. Second, the decision adopts a formal equality approach, which obscures how outsourcing is a fruit of, permeated by, and perpetuated by subordination. Regarding the dissenting position, the maintenance of the distinction between core and non-core activities derives from a non-intersectional look at the problem. It assumes a universal “worker,” missing the gender and racial aspects that create the differences that justify the possibility of different treatment and how the division proposed contributes to the perpetuation of the status of terceirizadas. Part IV advances a possible path for the future, proposing a provisional antisubordination-based argument to argue for the unconstitutionality of outsourcing in Brazil.

The analysis proposed here is dedicated to law and legal reasoning, and the limitations of this framework are briefly discussed in the concluding remarks, which delineate how workers' awareness and grassroots mobilizations may compensate for the limitations of law's emancipatory potential. Terceirizadas are aware of the problems and fighting for their rights.

[. . .]

In this work I have tried to perform a critical jurisprudential review of ADPF 324--the lawsuit in which the Brazilian Supreme Court declared unconstitutional the judge-made doctrine that forbade outsourcing of activities related to the core business of companies. Critical or not, at the end of the day, it is still jurisprudence, and the limitations of this kind of work hand of law itself have long been stated. Law, while useful for immediate pressing changes, is not sufficient to create radical change. Such change, from my perspective, comes from the ground up. And, fortunately, the ground is on the move.

Although times have been difficult in Brazil, terceirizadas have been resisting. I started this paper with a quote from Silvana Araújo da Silva, one of the leaders of the first terceirizadas' strike against a service-provider at the University of São Paulo that happened in 2005. Others followed in 2011, 2013, 2015, and 2016, in that and other settings. All of them were led by terceirizadas. Mobilizations can happen in any form. They can happen through strikes, but they can also happen by building a community of consciousness-raising or even on an individual level, by risking jobs to be interviewed by students. The quote that opened this section says it all.

PhD candidate in Law and Development at FGV Law School of São Paulo. Email: This email address is being protected from spambots. You need JavaScript enabled to view it..