Diversity in the workplace is an increasingly important issue both for employers and for other stakeholders. Positive action can help to increase the representation of traditionally disadvantaged groups in the workplace, but employers must take care to ensure that such measures do not inadvertently lead to unlawful discrimination.
What is generally meant by diversity in the workplace in your jurisdiction? Which factors are the primary focus?
Brazilian laws provide protection to:
- disabled people; and
- the elderly.
Pregnant women are entitled to:
- job security from the date of conception up to five months after the child is born; and
- 120 days of paid leave, which can be extended by 60 days if certain requirements are met. This right also applies to adoptive parents, provided that they meet certain conditions set out in the law.
Women are also entitled to a 15-minute break before starting overtime work. However, this right is being disputed before the Supreme Court, as some lawyers and gender associations believe that it does not comply with the Constitution, under which all individuals are considered equal before the law, regardless of gender, age, marital status, sexual orientation, religious beliefs, nationality or skin colour.
Women may be subject to other rights, depending on the applicable collective bargaining agreement and their job. Lawmakers have recently been discussing the possibility of establishing a legal quota for women on public company boards and in joint ventures (public-private companies). However, this bill is in a preliminary stage.
In Brazil, individuals under 16 years old are considered minors. The Constitution forbids minors from working, unless they are engaged as apprentices, in which case they can start working at 14 years old. Brazil is also signatory to the Night Work of Young Persons (Industry) Convention (6/1919) and the Minimum Age Convention (138/1973).
Apprentices (between 14 and 24 years old) must make up between 5% and 15% of a company's workforce. The law provides certain limits regarding the type of work, job position and workload that can be offered to minors.
Companies with more than 100 employees must hire disabled workers and comply with the progressive quota set out below.
Number of employees
100 to 200
201 to 500
501 to 1,000
More than 1,001
According to law, companies that must comply with this legal quota cannot dismiss a disabled employee unless another disabled individual can be hired to replace him or her.
In Brazil, individuals over 60 years old are considered elderly. In accordance with the labour laws, employees over 50 years old cannot roll over their holiday entitlement to the next year.
Some collective bargaining agreements provide job security to employees that are close to retirement. Further, Bill 1,495/2011 – which aims to provide a legal quota for elderly employees in companies and public service – is being voted on. However, due to the nature of Brazil's political and economic environment, a final decision by Congress may take years.
What progress has been made to date in your jurisdiction to foster diversity in the workplace?
Notwithstanding the above, the Superior Labour Court recently issued Precedent 443, which protects employees with serious illnesses (eg, cancer or AIDS) from discrimination. Any dismissal of an employee that suffers from a serious illness may be considered discriminatory. The burden is on the employer to prove that the dismissal was not related to the employee's illness.
What positive measures can employers adopt to foster diversity in the workplace without running the risk of positive discrimination claims?
The Constitution provides that everyone must be treated equally, regardless of gender, age, marital status, sexual orientation, religious beliefs, nationality or skin colour. Therefore, affirmative action is lawful only if expressly provided for by law.
Nevertheless, employers may provide employees with training programmes, workshops, seminars or any other type of event that instructs and encourages a non-discriminatory culture in the workplace. In addition, employers have legal powers to take disciplinary action in case of discrimination between employees. Any penalties imposed therein should consider the severity of the misconduct and the limits provided by Brazilian labour laws.
What training methods and key performance indicators can employers use to promote and assess diversity in the workplace? Can the resulting data be shared if it includes confidential employee information?
In Brazil, since affirmative action is lawful only if expressly provided for by law, employers must be careful when providing any anti-discrimination programme to employees. As mentioned above, employers may provide employees with training programmes, workshops, seminars or any other type of event that encourages a non-discrimination culture in the workplace. However, key performance indicators may not be appropriate to this end, as this may lead employees to take affirmative action in order to achieve a better performance without being supported by a specific law.
Employers should avoid collecting confidential employee information that is not related to their employment or authorised by law. The Constitution protects employees' privacy and personal data, preventing companies from requesting or sharing confidential employee information.
What are the implications for global businesses working in multiple jurisdictions with different diversity laws? Do the approaches taken by domestic and multinational enterprises differ in your jurisdiction?
In Brazil, every individual and enterprise – both domestic and foreign – is considered equal before the law. Therefore, foreign and national employees should be treated the same. As multinational companies typically have a broader range of cultures, they should comply with Brazilian labour laws in order to avoid potential discrimination.
Both domestic and multinational companies make efforts to comply with Brazilian laws regarding diversity in the workplace, and multinational companies usually adapt their global policies to the Brazilian laws. Multinational companies should avoid applying their global diversity policies without first consulting a Brazilian labour lawyer.
For further information of this topic please contact Sólon Cunha, Dario Abrahão Rabay or José Daniel Gatti Vergna at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados by telephone (+55 11 3147 7600) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados website can be accessed at www.mattosfilho.com.br.
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