Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Brazil (Ratification: 1965)

The Committee notes the observations of the National Confederation of Industry (CNI) received on 31 August 2017, of the International Organisation of Employers (IOE) received on 1 September 2015 and 31 August 2017, of the Union of Doctors in the State of Bahia (SINDIMED-Ba) received on 1 August 2014 as well as the Government’s reply to these last observations received on 5 January 2015.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. With regard to the Committee’s previous request, the Government indicates in its report that all bills on equality and non-discrimination in employment are still under consideration and are facing obstacles to their adoption. In this connection, the Committee notes that section 2(VI) of the Bill on Equal Opportunities and Treatment for Women in Employment (PLS No. 136/2011) includes moral, physical, psychological and sexual harassment as forms of discrimination against women. The Committee also notes that, according to the Government, the majority of public bodies have guidelines on the rights of women to be protected against sexual harassment and ways to prevent it and that the Ministry of Labour and Employment issued a leaflet to inform men and women workers of their rights. The Government also indicates that the Secretariat for Women’s Policies operates a hotline providing guidance and information to women reporting violence, which can refer women to the appropriate services. The Committee notes that according to the Government, 28 complaints of sexual harassment were lodged with the Ombudsperson for the Protection of Women’s Rights between 2013 and 2014. The Government adds that persons filing complaints are advised to seek assistance from trade unions and to formalize complaints to the Labour Prosecution Service, as well as through complaints mechanisms at the institution or enterprise level, or to seek legal advice from a private lawyer or the Public Defender’s Office. The Committee asks the Government to continue to provide information on any complaints of sexual harassment lodged with the Ombudsperson for the Protection of Women’s Rights or other competent authorities, including on any sanctions imposed and the remedies provided. Please also provide information on any concrete measures adopted to prevent and prohibit sexual harassment at work, as well as to raise awareness among employers, workers and their organizations regarding sexual harassment, and the results achieved. The Committee encourages the Government to take the necessary steps to ensure that new legislation on equality and non-discrimination in employment provides for a clear definition and prohibition of both quid pro quo and hostile environment sexual harassment, including by co-workers, and protects both men and women from harassment, and asks that it provides information on the progress made in this regard.

Article (1)(b). Sexual orientation and gender identity. In its previous comment, the Committee had noted the adoption of the National Plan on the Promotion of Human Rights of Lesbians, Gays, Bisexuals and Transsexuals in 2010. The plan set out a number of actions to combat discrimination on the basis of sexual orientation, including with regard to access to employment and vocational training. While noting that the Government provides no further information in its report, the Committee observes that the statistics published by the national Human Rights Ombudsman’s Office indicate 1,876 complaints were received through the hotline concerning violence, discrimination and other abuses experienced by lesbian, gay, bisexual and transgender (LGBT) persons in 2016, 5 per cent of which occurred at the workplace. The Committee therefore reiterates its request to the Government to provide information on the concrete measures taken in the context of the National Plan on the Promotion of Human Rights of Lesbians, Gays, Bisexuals and Transsexuals, including initiatives undertaken to combat stereotypes and prejudices with a view to eliminating discrimination on the basis of sexual orientation and gender identity, and their impact on the integration of LGBT workers in the labour market and on their working conditions.

Real or perceived HIV status. The Committee notes the Government’s reply concerning the application of Ministerial Order 1.246 of 2010, indicating that no records of complaints of discrimination relating to HIV testing are available, as no specific monitoring activities have been undertaken in connection with the implementation of this Order. The Committee also notes the Judicial Precedent No. 443 of 2012, of the Supreme Labour Court which holds that the dismissal of an HIV-positive employee is presumed to be discriminatory. The Committee welcomes the adoption of Ministerial Order No. 1.927 of 10 December 2014, which establishes guidelines for combating HIV and AIDS-related discrimination in the workplace and creates a Commission for the Prevention of HIV and AIDS in the World of Work within the Ministry of Labour and Employment (CPPT Aids). The Committee notes that the CPPT-Aids, which is composed of representatives from government, social partners and civil society organizations, is tasked with strengthening national policies and programmes in connection with HIV and AIDS in the world of work, including on health and safety at work, combating discrimination and promoting decent work. Bearing in mind that the CPPT-Aids is also responsible for monitoring the application of Ministerial Order No. 1.927 of 10 December 2014, the Committee asks the Government to provide information on the implementation of this Order, including on the activities carried out by the CPPT-Aids, as well as on any complaints concerning discriminatory practices reported under this Order, and their outcome. It also asks the Government to provide information on any cases brought before the courts or to the attention of the labour inspectorate concerning violations of the prohibition on carrying out tests concerning the seropositive status of employees at the time of admission to employment and when changing jobs.

Persons with disabilities. The Committee notes that the Law on Persons with Disabilities No. 13.146 of 6 July 2015 (section 4 and parts I, II and III) prohibits discrimination on the grounds of disability with respect to access to vocational training, in all stages of recruitment and access to employment and in conditions of work including remuneration. According to the information provided by the Government in its report, the National Employment System (SINE) offers services specifically targeted towards persons with disabilities. It is also intended, by 2017, to ensure that all premises have access ramps, counters and bathrooms that meet the technical accessibility specifications laid down by the Brazilian Technical Standards Association, and have at least one person on the staff who can communicate in sign language. In addition, the “D day” (“Dia D”) was created to promote labour market opportunities for people with disabilities. The Committee also notes that the data in the Government’s report indicate that in 2013, compared to 2012, there was an increase of 8.33 per cent in the number of employees declared to have a disability and an increase of 2.66 per cent in the average earnings of persons with disabilities. The Committee further notes that the gender pay gap between men and women with disabilities is highest among workers with hearing disabilities. The Committee encourages the Government to pursue its efforts to promote equal opportunities for persons with disabilities, including with regard to their integration in the labour market, and to continue to provide information on any measures taken to this end. Please also continue to provide up-to-date statistical information disaggregated by sex on the participation rates of workers with disabilities in both the public and private sectors.

Article 2. National equality policy. The Committee recalls its previous comments in which it asked the Government to provide specific information on the action taken by the National Committee for Equality of Opportunities on the Basis of Gender, Race, Ethnic Origin, for Persons with Disabilities and to Combat Discrimination; the Secretariat for Policies to Promote Racial Equality; and the National Coordinating Unit for the Promotion of Equality of Opportunity and the Elimination of Discrimination at Work, in the context of the national equality policy. The Committee notes the establishment of the Racial Equality Hotline and of the National Ombudsman’s Office for Racial Equality to receive complaints regarding racial discrimination and follow-up on these in cooperation with other bodies and institutions, including the Public Defender’s Office of the Union and the Labour Prosecution Service. The Committee also noted that the responsibilities of the National Committee include monitoring and evaluating the implementation of measures to promote equality and combat discrimination in employment, and asked information on the outcome of these evaluations. Noting that the Government’s report contains no information in this respect, the Committee recalls that the Convention requires the national equality policy to be effective, and that the results achieved in the implementation of the national policy are being regularly assessed with a view to reviewing and adjusting existing measures and strategies on a continuous basis. Measures to address discrimination in law and practice should therefore be concrete and specific, and should make an effective contribution to the elimination of direct and indirect discrimination and the promotion of equality of opportunity and treatment for all categories of workers, in all aspects of employment and occupation, and with respect to all grounds set out in the Convention (see General Survey of 2012 on the fundamental Conventions, paragraphs 844 and 847). The Committee therefore reiterates its request to the Government to provide detailed information on the concrete steps taken by the bodies referred to above, and the social dialogue bodies of the Ministry of Labour, to promote equality of opportunity and treatment in employment and occupation, with respect to all the grounds covered by the Convention, and the impact of such action. The Committee once again asks the Government to provide information on the outcome of the periodic evaluation of equality policies carried out by the National Committee for Equality of Opportunities on the Basis of Gender, Race, Ethnic Origin, for Persons with Disabilities and to Combat Discrimination, including on any recommendations arising from this assessment.

Promotion of equality of opportunity and treatment for men and women. The Committee notes the information provided by the Government on the measures adopted by the Secretariat for Women’s Policies under the National Plan for Women’s Policies, as well as the statistical information on the employment, unemployment and participation rates of women. It notes, in particular, the Government’s indication that, between 2011 and 2014, the Secretariat for Women’s Policies has invested over 48 million Brazilian reals (BRL) in cooperation agreements with municipal and state governments, as well as non-governmental organizations to improve women’s entrepreneurship and employability in both rural and urban areas, and that 46,436 women have benefited from these initiatives. The Committee also notes that according to the Government, policies to address gender segregation in higher education led to an increasing number of women choosing to opt for studies in the fields of technology and science. The Government also indicates that women’s participation in the labour market has been increasing and women represent 52 per cent of new entrepreneurs and 56 per cent of leadership posts in organizations and companies in the “solidarity economy”. With regard to the Pro-Gender Equity programme, the Government indicates that, of the 83 organizations participating in the programme, 78.2 per cent offer their male and female employees childcare benefits; 14.1 per cent provide a nursery; 29.48 per cent have a breastfeeding room in their facilities and 42.3 per cent give male employees extended paternity leave. The Committee notes, however, that, despite these measures, the Government indicates that due to occupational gender segregation and a higher incidence of unpaid work among women, differences in remuneration remain substantial, particularly among workers who have completed higher education, with women’s average remuneration standing at 60.93 per cent of men’s. The Committee asks the Government to continue to provide information on the specific measures adopted within the framework of the National Plan for Women’s Policies or otherwise to promote equality of opportunity and treatment between men and women in employment and occupation, and to improve women’s access to the labour market, including detailed information on the impact of such measures and the concrete results achieved.

Article 3(a). Cooperation with social partners. The Committee notes the examples provided by the Government of collective agreements which, among others, contain clauses prohibiting discrimination on different grounds or foreseeing affirmative action measures within the company. The Committee asks the Government to continue to provide examples of any collective agreements addressing discrimination or containing clauses that have been deemed discriminatory by the competent authorities.

Article 3(e). Vocational training programmes. The Committee notes the Government’s indication that women accounted for 60.23 per cent of the total number of places available under the National Programme for Access to Technical Education and Employment (PRONATEC) including courses related to traditionally male-dominated occupations. The Committee also notes from the statistics provided, that of the total 4.4 million enrolments in the scheme, of which 2.6 million were women, 17.5 per cent declared themselves to be “white”, 34.6 per cent “pardo”, 4.8 per cent “preto”, 0.7 per cent “amarelo”, 0.3 per cent indigenous and 42.1 per cent provided no information on race/colour. The Committee also notes the Government’s indication that the National Programme for the Documentation of the Rural Woman Worker gives guidance to women in family farming, artisanal fishers, quilombola and indigenous women, and provides them with access to civil, social and labour documents, free of charge to strengthen their autonomy and allow them to access public programmes. The Committee asks the Government to continue to provide statistical information, disaggregated by sex, race and colour, on the number of persons benefiting from the vocational training courses offered under the PRONATEC or other programmes or initiatives adopted at the national, state or local level to promote access to employment, training and education. The Committee reiterates its request that the Government provides information on the impact of the various vocational training programmes in promoting the employability of groups that have experienced labour market disadvantage, including due to disability, race and colour.

Article 5. Special measures of protection. The Committee notes the Government’s report in the framework of the Universal Periodic Review by the UN Human Rights Council, according to which in federal universities and technical institutes, 50 per cent of the vacancies are reserved for students coming from secondary public schools, with the distribution of vacancies among afro-Brazilians and indigenous peoples based on the proportion of such groups in the community. The Government also indicated that vacancies allocated to afro-Brazilians in higher education institutions grew from 37,100 in 2013 to 82,800 in 2015 (A/HRC/WG.6/27/BRA.1, 27 February 2017, paragraph 53). The Committee also notes the adoption of Law No. 12.990 of 9 June 2014, which sets a quota of 20 per cent applicable to vacancies in the civil service and publicly owned companies at the federal level for “black” and “mixed-race” (“pretos” and “pardos”) candidates. The Committee notes further that Resolution No. 203 of 23 June 2015 applies such quota in competitions to access the judiciary. The Committee asks the Government to provide information on any positive measures taken for the promotion of equal opportunities and treatment in employment and occupation for all workers, irrespective of race and colour, and the impact of those measures on the inclusion of “black”, “mixed-race” and indigenous workers in the labour market. The Committee also requests the Government to provide information on the measures adopted to address income differentials.

Enforcement. The Committee notes the Government’s indication that 354 cases of discrimination on the grounds of sex, origin, race, colour, marital status, age or family situation were reported by labour inspectorates between January 2013 and June 2015. In the same period, labour inspectorates reported 7,860 cases of discrimination on the basis of disability (recruitment and dismissal). The Committee requests the Government to continue to provide information on the number, nature and outcome of cases of discrimination in employment reported and addressed by labour inspectorates or other bodies. The Committee also reiterates its request for the Government to provide information on measures taken to build the capacity of those involved in monitoring and enforcement to better identify and address issues related to discrimination in employment and occupation.