Law 12.984, a new Brazilian law in effect since June 3, 2014, criminalizes discrimination against individuals based on HIV/AIDS status. Within the context of the workplace, the new law prohibits the adoption of discriminatory practices in hiring and termination from employment because of a person’s HIV/AIDS status. Employers are further prohibited from segregating employees based on HIV/AIDS status or disclosing their medical condition with the intention of offending the person’s dignity. Violation of the law will be punishable with one to four years of prison and a fine.
Law 12.984 is not the first to criminalize certain discriminatory practices: Law 7.716 of 1989 was the first law to regulate Brazilians’ constitutional rights against discrimination. In 1989, the list of protected categories included only race and color, but since then the law was amended and now individuals are also protected against discrimination based on ethnicity, religion and national origin. In addition, the amended 1989 law establishes that employers may be subject to criminal sanctions if, on the bases of a protected category, they deny or prevent employment or work; refuse to provide safety equipment to employees; prevent an employee’s promotion or his/her access to other professional benefits; treat employees differently, especially in relation to wages; or their job ads or other recruitment methods require specific racial or ethnic traits (except when the job activities or business needs justify said requirements).
In 1995, Brazil expanded the prohibition against discrimination in the workplace to include sex, marital status, family status, and age, and made it a crime for employers to require employees to submit to pregnancy tests or present negative certificates of pregnancy, induce employees to sterilization, or promote birth control not in accordance with the health system rules.
Before law 12.984, the Superior Labor Court (the highest labor court in Brazil) in 2012 issued jurisprudence to consolidate the Court’s position, establishing the presumption of discrimination where an employee with HIV or suffering from some other serious illness that may evoke stigma or prejudice, is terminated from employment. The Court enunciated that such termination is deemed invalid, entitling the employee to reinstatement.
Although only employees in managerial positions and company representatives can face criminal charges, corporate employers may be liable for moral damages (i.e., a type of punitive damages to cover unquantifiable damages and discourage similar behavior). Moral damages can be sought by individuals, in which case the awards typically remain within five-digit figures, or by the Labor Public Office on behalf of a group of employees, in which case the awards can reach millions of dollars.
A recent case filed by the Labor Public Office in the city of Bauru, State of Sao Paulo serves as an example. In that case (Docket nº 0010539-23.2014.5.15.0024), in representing a group of employees, the Office is seeking $4.5 million in moral damages for discriminatory recruiting practices against a company that created a “black list” of seasonal employees who filed prior claims against the company, suffered from various illnesses, or had low productivity during previous harvests.