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Artigo26.08.2016

Is the Brazilian Legal Framework Friendly to Women?

Por:

Thais Galo

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Brazil has a complex and detailed labor and employment legal framework. As the local rules present a plethora of rights to employees, legislators and labor courts are keen to guarantee some rights and rules tailored specifically to women.

The first answer to the question made on the title can be found at the Brazilian Federal Constitution, as it establishes that one of the foremost objectives of the government is to promote the general welfare, regardless of origin, race, gender, color, age, among others; prohibiting any kind of discrimination. There are several legal instruments at national level that aim to promote gender equality and protect female workers. The main women workers' rights under Brazilian labor laws include the following:

Maternity leave and pregnancy rights

Pregnant employees, either under open ended or fixed term employment contracts, are entitled to certain benefits. During pregnancy, such benefits include time off for at least six prenatal medical appointments or physical exams, sick leave if necessary and exemption from heavy-duty tasks.

Furthermore, a very recent bill amended Brazilian Consolidated Labor Laws to prohibit female employees to work on risky or unhealthy work places during the pregnancy period.

Additionally, pregnant employees are entitled to 120 calendar days off as maternity leave, however, private companies may opt to grant more 60 days off, totaling 180 days of maternity leave, and deduct the additional salary paid to the woman from their income tax.

The fully paid leave may begin, at employees' discretion, at any point from 28 days before the expected date of birth up until the date of birth.

The leave may be extended by up to four weeks (up to two weeks before and two weeks after the birth) on medical grounds. Employees must give employers notice of the date when the leave will start (the length of the notice is not speci􀃖ed by law) and provide medical certification of the pregnancy.

Pregnant employees also have job stability from confirmation of pregnancy up to five months after the delivery, which means that during maternity leave, employees maintain all their employment rights and are entitled to return to their previous job after the leave.

The same job stability and rights apply to adoptive mothers.

After maternity leave, employees who are nursing are entitled to two paid breaks of half an hour each during their working day to feed their child under six months (or older, if required on medical grounds). Furthermore, employers that have more than 30 female employees over the age of 16 must provide a dedicated room for employees to take care for their babies during the breastfeeding period. If this is not possible, the employer must instead pay a childcare fee subsidy to the employee.

Body search

Recent Law 13.271/2016 prohibits body/intimate search of female employees under penalty of fines. General searches on employees' bags and purses
may be tolerable, provided the dignity, intimacy and privacy of the female worker is preserved.​

Break before overtime

Brazilian Consolidated Labor Laws entitle women to a 15-minutes break between the end of the regular workday and the beginning of the overtime period. This matter, however, is controversial. Some understand that this provision breaches Brazilian Federal Constitution, which prohibits discrimination of any nature among employees. Although there is no controversy about this matter at the Brazilian Superior Labor Court, this issue has been discussed by the Federal Supreme Court. At a previous judgment, which was subsequently revoked due to a formal defect, the Federal Supreme Court, by majority vote held the provision lawful and accepted the possibility of granting different treatment as long as justified by legitimate elements and proportionally to equalize disparities. To support this argument, the justices stressed the historical exclusion of women in the labor market, the existence of an organic and biological component, and women's double workload with professional and home activities. Nevertheless, while the Federal Supreme Court does not issue a final decision, employers that violate this right may be required to pay that period to female employees accrued with 50%. 

Conclusion

Women are a vital part of the economic and social structure, yet their work is not yet valued at the same level as men's work. 

In the case of Brazil, women's full ​participation in society and the bridge of the gap between the rights set out in national standards, and the real situation of workers are critical factors for the economic and social development and, for that reason, several public and private actions, including the ones highlighted in this article, have been taken over the past years to promote equality in the workplace for all workers.​

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