Summary
The Federal Constitution prohibits any kind of discrimination, including distinction of salaries, duties and admission criteria due to gender, age, skin colour or marital status. The Constitution also prohibits any discriminatory acts with regards to distinction of salary and admission criteria of disabled employees.
Furthermore, as mentioned above, Law 9.029/1995 prohibits any kind of discriminatory practice which may limit the access or the maintenance of employment due to sex, origin, race, skin colour, marital status, family situation, disability, professional rehabilitation, and age, among others.
Protections Against Harassment
Protection of personal intimacy of any Brazilian citizen is granted, in a broad scope, by the Federal Constitution, which (a) prohibits any kind of discrimination, (b) grants the protection and inviolability of any citizen’s image, honour, intimacy and personal life and (c) sets forth that the noncompliance with such legal guarantees or the violation of their limits may be challenged, with the payment of indemnification due to moral harassment.
Notwithstanding, as far as Brazilian law is concerned, there are no express and specific provisions of law defining what is or what is not considered harassment in the workplace, but rather has been defined by the applicable case law.
Moral harassment can be defined as the repeated exposure of employees to humiliating and embarrassing situations during the working hours and while employees perform their duties. On the other hand, sexual harassment can be defined as the repeated exposure of employees to conduct from their superiors with libidinous and malicious connotations. Companies may establish their own policies related to moral and sexual harassment.
Since March 2023, all companies that mandatorily should have a CIPA (now called “Internal Committee for Accident Prevention and Harassment”) are required to: (i) include rules regarding combat and prevention of sexual harassment and other forms of violence in the company’s internal policies, with wide dissemination of its content to male and female employees; (ii) create procedures for receiving and following up on complaints (e.g., hotlines/report lines), for investigation of the facts, and, when appropriate, for applying disciplinary measures to those directly or indirectly responsible for acts of sexual harassment and other types of violence, ensuring the anonymity of the complainant, which does not exclude the appropriate legal procedures that may be taken by the victim; (iii) add topics related to the prevention and combat of sexual harassment and other forms of violence in the activities and practices of CIPA; and (iv) perform, at least every 12 months, training, guidance, and awareness-raising actions for male and female employees at all hierarchical levels of the company on topics related to violence, harassment, equality, and diversity in the workplace, in accessible and appropriate formats that maximise the effectiveness of such actions.
Employer’s Obligation to Provide Reasonable Accommodations
With regards to employees with disabilities, please note that Law 8.213/91 sets forth that every company with 100 or more employees is obligated to hire 2% to 5% of employees with disabilities or in the process of being rehabilitated according to the following proportionality: (a) up to 200 employees – 2%; (b) from 201 to 500 employees – 3%; (c) from 501 to 1000 employees – 4% and (d) over 1001 employees – 5%.
The law also establishes that the termination of an employee with disabilities or in the process of being rehabilitated is contingent on the hiring of another employee bearing similar conditions, in order to comply with the quota mentioned above.
Law 10.098/2000 established general rules and basic criteria to promote accessibility of people with disabilities in public and private buildings. Therefore, companies are required to adapt their workplace structure to enable employees with disabilities to work and have a place for them at the company.
With regards to an employee’s religious practices, the Federal Constitution protects the freedom of religious belief. However, there is no specific provision under the law obligating the employer to accommodate the employee’s religious practices.
Remedies
Brazilian Labour Courts are ruling that discriminatory termination of employees may result in reinstatement and indemnification due to moral damages. For instance, Precedent 443 of the Superior Labour Court holds that the termination of an employee with HIV or any other serious disease is presumed to be discriminatory and invalid, and the employee is entitled to reinstatement.
Other Requirements
In Brazil, companies must observe two quotas: (i) employees with disabilities and (ii) apprentices. There is no other specific legislation regarding diversity in the workplace. However, several companies are adopting internal policies and affirmative actions that aim at increasing diversity in the workplace.
