The Federal Constitution prohibits any kind of discrimination, including distinction of salaries, duties and admission criteria due to gender, age, skin color 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 color, marital status, family situation, disability, professional rehabilitation and age, among others.
Extent of Protection
Employers are prohibited from discriminating against any candidate/employee during the hiring process and the employment relationship for any reason, including, but not limited to sex, origin, race, color, marital status, family situation, disability, professional rehabilitation and age.
An employer can adopt a non-discriminatory policy applicable to all employees with guidelines about conduct that should not be performed by employees. In addition, the employer may provide training to its managers and hierarchical superiors to avoid any discriminatory act or otherwise transmit an anti-discriminatory culture at the company.
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, honor, 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.
Employer’s Obligation to Provide Reasonable Accommodations
With regards to disabled persons, 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 who are disabled 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 who is disabled 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 disabled persons in public and private buildings. Therefore, companies are required to adapt their workplace structure to enable disabled employees 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.
Brazilian Labour Courts are ruling that discriminatory termination of employees may result in reinstatement and indemnification due to moral damages. For instance, 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.