Brazilian law entitles pregnant employees to temporary protection from dismissal from the confirmation date of the pregnancy until five months after giving birth.
A dismissed employee may discover their pregnancy several weeks after the termination of their contract and conclude that they became pregnant while still employed (including during the dismissal notice period). In this situation, the employee can file a lawsuit to claim either reinstatement to work or a lump sum payment of several months' salary, despite neither the employee nor the employer being aware of the pregnancy at the time the contract was terminated.
The law expressly prohibits a pregnancy test as a requirement for offering or maintaining employment, but lacks a provision related to a test upon dismissal.
A recent decision from the Superior Labour Court denied pain and suffering damages claimed by a former employee who was subject to a pregnancy test when her contract was terminated. The Court ruled that the exam was not discriminatory, did not violate the employee's privacy and gave legitimacy to the dismissal.
According to the majority of the Court's judicial panel, if the test resulted in the employee being pregnant, she would be entitled to keep her job and continue to receive her salary throughout the protection from dismissal period. Therefore, a lawsuit for reinstation or indemnification would be unnecessary. An overruled vote stated that the employer conduct was a violation of employee's privacy.
Finer points to be discussed going forward focus on the type of test (blood or pharmacy-bought), whether the test can be taken at home or on the company premises, and whether an employee's privacy is more important than her right to continue working.
Whether a violation of employee privacy or not, it is certainly an effective preventive measure to be considered by employers that has been supported by the case law. The measure maybe become law if a bill, under discussion since 2016, is enacted in the future.
For further information on this topic please contact Patricia Barboza at CGM Advogados by telephone (+55 11 2394 8900) or email ([email protected]). The CGM Advogados website can be accessed at cgmlaw.com.br.
Poliana César assisted in the preparation of this article.