Brazil
Overview
Please review the information below and then return to the workplace harassment prevention course.
Harassment and discrimination in all forms are prohibited by national legislation punishable by current labor legislation and, in some cases, may even be punished criminally, depending on the severity and nature of the offense.
Applicable Laws
The Federal Constitution prohibits discrimination with respect to wages, performance of duties and hiring criteria on the basis of gender, age, skin colour or marital status. The Constitution also prohibits discrimination with respect to wages and hiring criteria on the basis of disability.
Applicable National Legislation
- Federal Constitution – 1998
- Decree-law No. 5,452/1943 (Consolidation of Labor Laws)
- Law No. 9,029/1995 (Prohibition of requiring pregnancy and sterilization certificates and other discriminatory practices for the purposes of hiring or maintaining an employment relationship)
- Law No. 14,611/2023 (Equal Pay Law)
- Law No. 14,540/2023 (Program for the Prevention and Confrontation of Sexual Harassment and other Crimes against Sexual Dignity and Sexual Violence)
- Decree-law No. 4,377/2002 (Promulgates the Convention on the Elimination of All Forms of Discrimination against Women, 1979, and repeals Decree No. 89,460, of March 20, 1984).
- Law No. 12,288/2010 (Racial Equality Statute)
- Law No. 10,741/2003 (Elderly Persons Statute)
- Law No. 13,146/2015 (Statute of Persons with Disabilities)
- Decree-law No. 2.848/1940 (Penal Code)
- Law No. 14,532/2023 (Legal provision for crimes of racism and racial injury)
- Law No. 10,224/2001 (Sexual Harassment Crime)
- Decree-law No.10,088/2019 (Consolidation of normative acts promulgating conventions and recommendations of the International Labor Organization – ILO ratified by the Federative Republic of Brazil)
Discrimination in the workplace can be direct or indirect:
- Direct discrimination (Analysis of the conduct and intention with which the act was carried out (discrimination based on sex, color, etc.): occurs when unequal treatment is based on prohibited criteria, such as sex, color, age, origin, religion, or any other reason set forth in the legal system;
- Indirect discrimination (Analysis of the effects and practical consequences of offensive conduct): is observed in formally equal treatment, but which produces different effects, to the detriment of certain people or groups. These are practices that are apparently neutral, but which result in the exclusion of people or social groups that have been historically discriminated against.
The Federal Constitution provides for the Principle of Equality and its corollary, the principle of non-discrimination, translated into the fundamental objective of promoting the good of all, without prejudice of origin, race, sex, color, age and any other forms of discrimination, as set out in the Federal Constitution.
Applicable International Legislation
- International Labor Organization (ILO) Conventions ratified and enacted by Brazil, highlighting the main ones below :
- ILO Convention No. 19 concerning Equality of Treatment of Foreign and National Workers in Respect of Compensation for Accidents at Work, approved by Legislative Decree No. 24 of 29 May 1956; and promulgated on 25 June 1957
- ILO Convention No. 97 concerning Migrant Workers, approved by Legislative Decree No. 20 of 30 April 1965, promulgated on 14 July 1966
- ILO Convention No. 100 concerning equal remuneration for male and female workers for work of equal value
- ILO Convention No. 111 concerning discrimination in employment and occupation, approved by Legislative Decree No. 104 of November 24, 1964 and promulgated on January 19, 1968
- ILO Convention No. 118 on Equal Treatment of Nationals and Non-Nationals in Matters of Social Security, approved by Legislative Decree No. 31 of August 20, 1968 and promulgated on April 27, 1970
ILO Conventions No. 190 (on violence and harassment in the workplace) and No. 192 (on biological risks in the workplace) are currently awaiting ratification.
- United Nations (U)
- Universal Declaration of Human Rights, adopted and proclaimed by the United Nations General Assembly (resolution 217 A III) on 10 December 1948.
- International Covenant on Economic, Social and Cultural Rights, adopted by Resolution No. 2,200-A (XXI) of the General Assembly of the United Nations on December 16, 1966 and ratified by Brazil on January 24, 1992.
The Consolidation of Labor Laws allows an employee to terminate his/her contract for just cause by the Employer (due to the Employer’s fault) if he/she is subjected to degrading treatment, as per the discriminatory practices described above.
Protected Characteristics
Harassment or discrimination based on any characteristic set forth below is prohibited in Brazil.
- Sex/Gender
- Race (inherited physical characteristics, such as skin color, hair type and other physical aspects)/ Ethnicity (encompasses cultural factors such as language, religion, traditions and nationality)
- National origin/ Culture
- Marital status
- Family situation
- Person with Disability
- Age
- Religion
- Political affiliation/ Ideology
- Union affiliation
- Any other characteristic that have the purpose or result of nullifying or impairing the recognition, enjoyment
Definitions
Moral Harassment
Harassment is, therefore, the constitutive practice of a serious action qualified by moral content. Such harassment is embodied in a disrespectful, inconvenient, humiliating, insolent or offensive practice to human dignity. These are the aspects of the personality that are considered to be affected by moral harassment, studied in recent decades as a form of violence of a moral nature, observed in the organization of work activities, and which presents a strong correlation with power relations,66 which are the foundations of interpersonal behavior.
Sexual Harassment
Sexual harassment is characterized by any offensive action that violates a person’s sexual availability, violating their sexual freedom, that is, the right to dispose of one’s own body or not to be forced to perform an unwanted sexual act. Such action constitutes an offense to honor and sexual dignity, understood as a feeling of personal dignity and as the right to conceive, define and exercise sexual activity, respecting the limits of public morality. In the case of sexual harassment at work, the dignity of labor relations is directly affected, which has the status of a protected legal asset, as a guarantee of freedom, equality, self-determination and the right to non-discrimination in the exercise of work.
According to the provisions of the Law No. 10,224/2001, sexual harassment has become a crime, the criminal type of which is described as “constraining someone with the intention of obtaining sexual advantage or favor, with the agent taking advantage of his/her hierarchical superior status or ascendancy inherent in the exercise of employment, position or function”, and the penalty – is detention, from 1 (one) to 2 (two) years.
Filing a Claim in Brazil
As a result of moral harassment, the employee may file a labor lawsuit requesting compensation for moral and material damages resulting from discriminatory conduct. In addition, depending on the severity, the employee may file a labor lawsuit requesting recognition of the termination of the employment contract for just cause by the employer (employer’s fault), without prejudice to the compensation mentioned above.As a result of sexual harassment, the employee may file a labor action requesting compensation for moral and material damages resulting from discriminatory conduct. In addition, the employee may file a labor action requesting recognition of the termination of the employment contract for just cause by the employer (employer’s fault), without prejudice to the compensation mentioned above.
In both cases, there is also the possibility of inspection by Labor Justice bodies in relation to the possible violation of collective health rights of workers due to repeated sexual harassment, repeated moral harassment or organizational moral harassment, and the Labor Public Prosecutor’s Office may file a public civil action for compensation for collective damages.
Regarding harassment resulting from racism and racial injury, the harasser may be held liable for criminal proceedings, considering that this is a serious crime in Brazil that is imprescriptible and non-bailable, with the possibility of arresting those involved in discriminatory practices, without prejudice to the civil liability of those involved for moral and material losses and damages resulting from the crime.
Regarding harassment resulting from moral and sexual harassment, those involved in discriminatory practices may be subject to criminal proceedings, without prejudice to the civil liability of those involved for moral and material losses and damages resulting from the crime.
Potential Remedies
In Brazil, an employee who has experienced workplace discrimination or harassment may be entitled to monetary and other remedies. An employer may be required to take certain actions to correct or redress discriminatory harassment or violations of workplace safety standards. Potential remedies are listed below. These remedies may or may not apply, as per relevant law.
- Preparation, implementation and training by the Employer of measures to prevent harassment in the workplace
- Monitoring the prevention of harassment risks, through internal procedures such as, for example, climate research, feedback, among others
- Implement Conduct Policy, Reporting Channels with the possibility of confidential reporting by the employee
- Implement Anti-retaliation Policy after employee reporting discrimination
- Promoting a healthy work environment and prevent discriminatory practices
- Hiring
- Transfers
- Reassignments
- Promotions
- Reinstatement to a position
- Compensation for lost wages and benefits
- Damages for injury to dignity or feelings
- Cease and desist orders
Retaliation Prohibited
Employer retaliation against an employee who files a complaint relating to discrimination or harassment or is involved in the complaint process is unlawful.