This summary of age discrimination law in Brazil has been prepared by Veirano Advogados, the Ius Laboris member for Brazil: www.veirano.com.br
Brazil is a litigious country in many aspects of employment and yet discrimination is not among the most popular causes of legal action.
Protection from discrimination is contained in various pieces of legislation:
- The Constitution bans "any form" of discrimination and grants to the people the freedom of profession. It also prohibits “arbitrary” termination, which has been consistently interpreted as the prohibition to terminate employment for any reason that is not business-oriented.
- The Constitution also provides in Article 7, XXX, that differences of positions, salaries or hiring procedures resulting from gender, age, "colour" (not "race") and marital status are expressly forbidden;
- The Labour Code was amended in 1999 to include Article 373-A, which prohibits job ads with reference to gender, age, "colour" (not "race"), family status (encompassing marital status and maternity). It also prohibits the refusal of job, promotion or termination based on those same aspects plus pregnancy. Such prohibitions will not apply if the job is obviously unsuitable for such a characteristic.
- Law 5,473 (1968) prohibits discrimination in the recruiting programmes. It was not revoked but it became obsolete as more specific laws came about.
- Not particularly aiming at the workplace, discrimination or prejudice of “race, colour, ethnic group, religion or national origin” are generally prohibited in Brazil by a law enacted in 1989 (Law 7,716) and further elaborated in 1997 and 2010 (as amended by Laws 9,459 and 12,288). Articles 3rd and 4th of the Law 7,761 tackle the issue in public and private jobs respectively.
- Law 9,029 is an important provision regarding discrimination at workplace in Brazil and prohibits any discrimination based on gender, race, colour, marital status, family status or age.
- Lastly, Law 10,741 enacted in 2003 provides generally for social protection of elderly citizens, including professional rights and prohibition of age discrimination in recruiting programmes, except for where the circumstances may justify the need for younger workers, such as the need of physical strength.
The Federal Constitution’s fundamental protection, the prohibition of “any form” of discrimination applies to everyone whether employee, or independent contractor. The Law 7,716 applies to all workers, both public agents and employees of private companies. However, Law 9,029 and the more specific rules provided for in the Labour Code apply to employees only.
What enforcement/remedies exist?
Law 7,716 is a penal law. Discrimination is a criminal offence. Sentences may be up to 5 years imprisonment.
The Law does not provide for specific compensation, although fines will apply to minor offences such as publicising work ads with requirement of unjustifiable personal features such as age.
Law 9,029 provides that the termination of the employment agreement motivated by a discriminatory act provides the employee with the option of being reinstated into his\her prior position and to receive the payment of the wages related to the absence period.
Besides the specific provisions, the general rule of civil liability applies and thus all direct damages are subject to compensation, as ascertained by the judge. Depending on the circumstances, the compensation may include loss of wages, for example, to someone who has been unfairly refused a job, or more frequently a special compensation for pain and suffering (under the Brazilian notion of moral damages, as opposed to the material ones). Awards for special damages do not follow statutory patterns or criteria. The judge must arbitrate them according to general principles of law, balancing between ‘prudence’ and ‘exemplary judgment’, while the ‘parties’ financial condition’ will also be important, so as to prevent the victim from having the incentive to make a fortune out of misery and the employer from paying an insignificant amount. Average awards for special damages are modest in comparison to other countries: between £4,000 and £8,000. But class actions filed by the Labour Public Attorney’s Office (Ministério Público do Trabalho) are becoming more frequent and awards for collective damages could be as high as £2,000,000.
How common are claims?
Individual discrimination claims are still rare compared to the massive litigation for overtime, equal pay for equal work and other ordinary employment rights, but is increasing in the last years in Brazil.
What claims are most common and what are the trickiest issues for employers?
The employer’s strict liability derives from its duty to organise and discipline the workplace. In Brazil, the employer has the power and the duty to keep discipline within the workplace. Therefore, in order to be acquitted from the responsibility for its employee’s illegal conduct towards colleagues the company must prove that it looks after discrimination/harassment free work environment demonstrating concrete actions and to demonstrate that it could have not prevented the incident. The company is also expected to take prompt disciplinary action upon any incident.
The most difficult cases are alleged but doubtful actions of discrimination as a result of improper or abusive management. Mainly multinationals and some large national companies have Equal Opportunity policies, ombudsmen, hotlines and other mechanisms to prevent and ban discriminatory conduct. Experience shows that mid-level and low-level employees tend to make inappropriate use of hotlines for personal complaints which do not constitute professional misconduct. Maybe this is because the average Brazilian worker tends to mix personal feelings with professional relationship.
Are there any specific exceptions in your law?
The prohibition of discrimination in the workplace contains a general provision that allows justifiable exceptions by the circumstances.
The default retirement age is 65 for men and 60 for women. Some special rules apply such as to rural workers and to workers exposed to unhealthy conditions. Mandatory retirement is not common and is only possible in the public service.
In the beginning of 2012, Petrobrás, the Brazilian oil multinational, closed a class action through an agreement with the Labour Public Attorney’s Office at São José dos Campos, a traditional industrial city about 100 km from São Paulo. The lawsuit was motivated by different forms of discrimination against outsourced workers. Petrobrás allegedly refused to let into its refinery approximately 30 outsourced workers who either had a criminal record or a history of strike or labour litigation. In exchange of the lifting of the charges including a £156 Mi claim for special damages, Petrobrás agreed to take back any discrimination conduct, to promote nationwide educational campaigns and paid a special indemnification to charity organisation of approximately £130,000.