While rules to protect women and prevent unfair discrimination have existed for many years, Brazil is still far from reaching gender equality in the workplace. Research by governmental institutions has shown that, over the past decade, women have been paid at least 20% less than men for the same work, on average. Historically, women have faced discrimination when trying to access the formal employment market, despite rules aimed at achieving a workplace without gender bias or disadvantages.(1)

Case law
Nonetheless, Brazilian judges are generally sensitive to discrimination allegations and will likely favour employees whenever discrimination is reasonably evidenced. The Supreme Court has even been involved in employment-related matters – recently, it issued a binding precedent determining that where a mother and/or her child is hospitalised following childbirth, her maternity leave will only begin to take effect after she or the infant is released from the medical facility, whichever is latest (for further details, see “Court decision to extend period of maternity leave ratified”).

The Labour Public Prosecutor has been active in investigating and fighting sexual harassment at the workplace, and companies are also receiving requests to evidence equal pay compliance for participation in public tenders and direct contracting with public bodies.

Legislation
In yet another effort to foster gender equality at the workplace, a law aimed at facilitating the insertion and maintenance of women at the workplace and incentivising the equal sharing of parental responsibility was recently passed. The law’s measures include:

• providing incentives for employers to offer day-care allowances;
• allowing more flexible work regimes for employees who are caring for children up to six years old or disabled children, including allowing employees to use their annual leave before it has fully accrued;
• obliging employers to have policies preventing sexual harassment and other forms of violence at the workplace and promoting regular training of employees on the matter;
• allowing the 60-day supplementary maternity leave offered by companies enrolled in the Empresa Cidadã programme to be shared between female and male employees; and
• creating a certification to be granted to employers that implement certain good practices to promote equality at the workplace.

Most of the potential improvements brought by this new law do not trigger penalties for companies that do not adopt them, and many were already present in collective agreements negotiated by more active unions. However, the enactment of the law enables employers whose employees are not covered by such collective agreements to implement the conditions more confidently with clear statutory support. It will be interesting to see whether companies will embrace them and whether the law will have a practical effect on improving equality at the workplace in the long run.

Comment
If intentions become reality, companies should expect increased attention on this matter in the next few years. This may result in additional statutory obligations and incentives to achieving equality, or a strengthening in compliance enforcement. The recently elected government has presented its intention to enhance diversity and inclusion as early as in its government proposal document during the election campaign. The current president not only addressed the matter in his inauguration speech and ceremony, but also recreated the Ministry of Women, a clear indication of the importance of the matter for the Brazilian government going forward.

For further information on this topic please contact Patricia Barboza or Pedro Azevedo at CGM Advogados by telephone (+55 11 2394-8900) or email ([email protected] or [email protected]).

Endnotes
(1) For example, the Brazilian Federal Constitution:

• states that men and women are equal;
• prohibits differences in salary, duties or admission criteria based on sex; and
• grants paid maternity leave of at least 120 days.

Brazilian law also:

• protects mothers from termination without cause for five months after the birth of their child;
• sets out protective health measures for pregnant women, such as:
  • leave without prejudice to enable pregnant employees to attend a minimum of six prenatal medical consultations; or
  • the adaptation of tasks for health reasons during pregnancy or while breastfeeding;
• requires equal salaries to be paid to employees, regardless of gender or other personal characteristics, where:
  • the employees are performing the same activities;
  • the employees have the same productivity and performance levels;
  • the employees work in the same place; and
  • certain temporary thresholds to enable a pay comparison to be made are met (eg, time in the position and time of employment with the employer);
• generally prohibits conduct that may adversely affect equality at the workplace, such as:
  • the announcement of positions with reference to sex or family situation;
  • refusing employment or promotion on the grounds of or basing termination on an employee’s family situation, sex or
    pregnancy (this includes the criminalisation of any requirements to prove that a person is not pregnant or has been subject to a sterilisation procedure); and
  • considering an employee’s sex or family situation as a determining variable for compensation, professional development and professional opportunities; and
• penalises the employer if there is evidence that it has paid its employees differently on the grounds of their sex. Employers must pay a punitive fine or double compensation for terminating an employee’s employment on discriminatory grounds if the employee does not want to be reinstated, regardless of pain and suffering damages.