This summary of age discrimination law in Brazil has been prepared by Veirano Advogados, the Ius Laboris member for Brazil: www.veirano.com.br
Overview
Brazil is a litigious country in many aspects of employment and yet discrimination is not among the most popular causes of legal action. Nevertheless, with the enactment of workplace anti-discrimination laws, there has been more cases filed based on discrimination in which the employee seek either being reinstated into his/her position with payment of salaries for the period between termination and reinstatement or double payment of the salaries due since termination (Article 4, I and II of Law 9029/95).
Protection from discrimination is contained in various pieces of legislation:
The Constitution bans "any form" of discrimination and grants people the freedom of profession.
The Constitution also provides in Article 7, 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, however, will not apply if the job is obviously unsuitable for such a characteristic.
The Labour Code was also amended in 2017 to include Article 223-A to G, which provides that offenses to the honour, image, intimacy, freedom to suit, self-esteem, sexuality, health, entertainment, and physical integrity may lead to moral damages. The indemnity may vary according to the nature of the damage, from one to 50 times of the employee’s monthly salary.
Law 5,473 (1968) prohibits discrimination in the recruiting programmes. It was not revoked but it became obsolete as more specific laws came about.
Whilst not particularly aiming at the workplace, discrimination or prejudice of “race, colour, ethnic group, religion or national origin” is 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 respectively). Articles 3 and 4 of the Law 7,761 address 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 providing the employee with very effective remedies (reinstatement and/or double payment of salaries). As Brazil has termination at will as a rule, cases seeking relief due to termination for discrimination require evidence of discrimination.
Lastly, Law 10,741 enacted in 2003 provides generally for the 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 for physical strength.
WHO'S COVERED?
The Federal Constitution’s fundamental protection prohibiting “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. Where an individual makes a successful discrimination claim, the perpetrator would be regarded as having committed 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 a requirement of unjustifiable personal features such as age.
Law 9,029 provides that if an employee has been terminated because he/she has been discriminated against, the employee may have the option to be reinstated or to receive a payment equivalent to the twice the wages covering the period of his/her absence due to the discriminatory termination of employment.
Besides the above, the general rule of civil liability applies and thus all direct damages are subject to compensation ascertained by the judge. Depending on the circumstances, this 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 damages). 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’, taking into account the financial situation of the parties so as to prevent individuals from making a windfall but also balancing this so that the employer pays a reasonable amount.
Average awards for special damages are modest in comparison to other countries - between £4,000 and £8,000. However, 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 less common than claims based on overtime, equal pay for equal work and other ordinary employment rights. That being said, there has been an increasing trend over the last few years in Brazil, especially as a result of the enactment and application of Law 9029/95.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE THE TRICKIEST ISSUES FOR EMPLOYERS?
Employers have a duty to organise and discipline the workplace and therefore, may be vicariously liable for an employee’s conduct. To be acquitted from the responsibility for its employee’s illegal conduct towards other colleagues, the employer must be able to prove that it encourages a discrimination/harassment-free work environment and must demonstrate concrete actions and show that it could not have prevented the incident. The company is also expected to take prompt disciplinary action upon any incident.
It is common for mid-level and low-level employees to make inappropriate use of hotlines to the ombudsmen or refer to company policies on Equal Opportunities for personal complaints which do not constitute professional misconduct.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?
The prohibition of discrimination in the workplace contains a general provision that will not be applicable only if there is no evidence of discrimination.
RETIREMENT
The statutory retirement age depends on a few factors, namely the years of service and the activities performed. The default retirement age is 65 for men and 60 for women.
Some special rules apply to rural workers and to workers exposed to unhealthy work conditions.
Mandatory retirement is not common and is only possible in the public service.
INTERESTING CASES
In the beginning of 2012, Petrobrás, the Brazilian oil multinational, ended 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 allow 30 outsourced workers who either had a criminal record or a history of strike or labour litigation, enter its refinery. In exchange of the lifting of the charges including a £156 million claim for special damages, Petrobrás agreed not to engage in any conduct which may be discriminatory and to promote nationwide educational campaigns. They also paid a special indemnification to charity organisation of approximately £130,000.
Another case is one involving a not-for-profit organization that manages an university and a medical school. Plaintiff sued the university to overrule the school’s policy that prevented her from running again for the poll to appoint the Economy School Coordinator, plus damages. The lower court granted the claims on grounds of discrimination against age. The Appellate Court overturned the decision accepting defendant’s allegations that the restriction did not affect her profession as a teacher, whereas the policy was strictly within the school’s capacity of administrative organization, that the policy was meant to rotate the position of Coordinator for the benefit of the school and