In an arguably regressive decision issued on November 27, 2014, the Superior Federal Court of Brazil (the equivalent of the United States Supreme Court) ruled that it is constitutional to provide certain benefits only to female employees, and in particular, that article 384 of the Brazilian Labor Code was not tacitly revoked by the current Federal Constitution. RE 658312.
The current Federal Constitution enacted in 1988 emphasizes the principle of equality, and expressly asserts gender equality by stating that men and women are equal in rights and obligations within the terms of the Constitution. Article 5, item I of the Federal Constitution. However, the Federal Constitution left a few doors open for correcting existing inequalities and accounting for physical differences between genders, by allowing the possibility of differentiated treatment in certain circumstances. One of these exceptions, for instance, establishes the protection of the labor market for women through specific incentives, as provided by law, and provides different retirement ages for men and women. See, Article 7, item XX and Article 40, §1, item III, (a) and (b) of the Federal Constitution.
The Brazilian Labor Code, created in 1943, has a chapter entirely dedicated to the protection of women’s work. Chapter III of the Consolidated Labor Laws. In 1989, following the new Constitution, Law 7.855/89 expressly revoked many articles of that chapter, in particular those that restricted women from working overtime and at night, which hinder the job opportunities for women. However, the law did not revoke article 384 of that chapter, which determines that employers must provide a 15-minute break to female employees before they start any overtime work.
Many lawyers have since argued that this provision violates the constitutional right to gender equality, and discriminates against men. Today, it seems both preposterous and difficult to justify providing a break only to female employees, based on the assumption that women are physically weaker than men and have double duties—at work and home. Men are not necessarily in better shape than women and many men have assumed some, or even all, household domestic obligations. Moreover, this disparity in treatment in the workplace may in fact hurt women in a competitive labor market.
But, that is not the understanding of the Brazilian courts.
The Superior Labor Court, the highest labor court in Brazil, in 2008 settled its understanding that article 384 was in accordance with the Constitution and employers must comply with it. However, many lawsuits continued to challenge the legality of that obligation to the point that the Superior Federal Court, recognizing the general repercussion of the matter, accepted hearing the appeal of Angeloni & Cia Ltda. against the Superior Labor Court decision that maintained the judgment against the company awarding the payment of 15 minutes of work at overtime pay rate for every time the female employee worked overtime without taking the mandatory break.
The Brazilian Association of Supermarkets (ABRAS) and the Brazilian Federation of Banks (FEBRABAN) submitted amicus curiae briefs in support, and two of the Justices voted that the article violates the equality principle, and could only be acceptable for activities that require physical effort. However, in the end, the majority of the Justices of the Superior Federal Court voted against the appeal and ended the controversy by stipulating that article 384 is constitutional and that the 15-minute break rule applies to all non-exempt female workers.
Employers in Brazil should, therefore, review their overtime policies and make sure that female employees entitled to overtime pay get the required break before starting any overtime work. Any work performed after the regular eight hours per day and 44 hours per week is considered overtime. As with the case of lunch and other breaks, employers should make sure that employees are away from their workstations during the 15-minute break and the break is duly recorded through the applicable timekeeping system to avoid related overtime claims.