Extent of Protection
Employers are prohibited from discriminating against any candidate/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.
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.
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, 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 to conducts from their superiors with libidinous and malicious connotation. Companies may establish their own policies related to moral and sexual harassment.
Employer’s Obligation to Provide Reasonable Accommodations
With regards to disabled persons, please note that Brazilian law 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 pre-defined proportionality. The law also establishes that the termination of disabled or rehabilitee employee is contingent to the hiring of another employee bearing similar conditions, in order to comply with the quota mentioned above.
There also exists general rules and basic criteria to promote accessibility of disabled persons in public and private buildings. Therefore, the companies need to adapt their structure to adequate the workplace to enable disabled employees to work and dislocate them at the company.
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.
An employer can adopt a non-discriminatory policy applicable to all employees with guidelines about conduct that should not be performed by employees. In addition, 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.