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Anti-Discrimination Laws in Brazil

1. Brief Description of Anti-Discrimination Laws

The Federal Constitution prohibits any kind of discrimination, including distinction of salaries, duties and admission criteria due to gender, age, skin color or marital status. The Constitution also prohibits any discriminatory act with regards to distinction of salary and admission criteria of disabled employees.

Also, Law 9.029/1995 prohibits any kind of discriminatory practice which may limit the access or the maintenance of employment due to sex, origin, race, color, marital status, family situation, disability, professional rehabilitation, age, among others (please refer to item “II” for further information).

2. Extent of Protection

Employers are prohibited from discriminating against any employee during the hiring process and the employment relationship for any reason, including, but not limited to sex, origin, race, color, marital status, family situation, disability, professional rehabilitation, age.

Also, Brazilian Labor Courts are ruling that discriminatory termination of employees may incur in reinstatement and indemnification due to moral damages. For instance, Precedent 443 of the Superior Labor Court, holds that the termination of an employee with HIV or any other serious disease is presumed to be discriminatory and invalid, and the employee is entitled to reinstatement.

3. Protections Against Harassment

Protection of personal intimacy of any Brazilian citizen is granted, in a broad scope, by the Federal Constitution, which (a) prohibits any kind of discrimination; (b) grants the protection and inviolability of any citizen’s image, honor, intimacy and personal life, and (c) sets forth that the noncompliance with such legal guarantees or the violation of their limits may be challenged with the payment of indemnification due to moral harassment.

Notwithstanding, it is important to stress that as far as the Brazilian law is concerned, there are no express and specific provisions of law defining what is or what is not considered harassment on workplace, being it defined by the applicable case law.

Moral harassment can be defined as the repeated exposure of employees to humiliating and embarrassing situations during the working hours and while employees perform their duties. On the other hand, sexual harassment can be defined as the repeated exposure of employees of conducts with libidinous and malicious connotation.

4. Employer’s Obligation to Provide Reasonable Accommodations

In regards to disabled persons, please note that Law 8.213/91 sets forth that every company with 100 or more employees is obligated to hire 2% to 5% of disabled or rehabilitee’s employees according to the following proportionality: (a) up to 200 employees – 2%; (b) from 201 to 500 employees – 3%; (c) from 501 to 1000 employees – 4% and (d) over 1001 employees – 5%.

In what regards an employee’s religious practices, the Federal Constitution protects the freedom of religious belief. There is no specific provision in law obligating the employer to accommodate the employee’s religious practices.

5. Remedies

An employer can adopt a non-discriminatory policy applicable to all employees with guidelines about conduct that should not be performed by employees. Also, the employer may provide training to its managers and hierarchical superiors to avoid any discriminatory act and transmit an anti-discriminatory culture at the company.

For more information on these articles or any other issues involving labour and employment matters in Brazil, please contact TozziniFreire Advogados
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