Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the observations of: (1) the Single Confederation of Workers (CUT) received on 2 September 2022; (2) the Brasilia Bank Workers Union (Bancários/DF); the National Federation of Caixa Econômica Federal Staff Associations (FENAE); and the CUT received on 1 September 2022; and (3) the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI) received on 30 August 2022 and 31 August 2018. The Committee asks the Government to provide its comments thereon.

Article 1(1)(b) of the Convention. Additional grounds of discrimination. Sexual orientation and gender identity. The Committee notes with interest that, in 2019, the Federal Supreme Court decided that, until the National Congress publishes a specific law, real or supposed discriminatory conduct against LGBT persons shall be equivalent to the crimes foreseen in Law No.7.716 of 5 January 1989 which defines crimes arising from prejudice related to race or colour, including in employment and occupation (section 4). The Committee observes from the statistics published by the National Human Rights Ombudsman’s Office, that in 2021, 2,835 complaints were received through the hotline concerning violence, discrimination and other abuses experienced by LGBT persons, 3.4 per cent of which occurred at the workplace. The Committee asks the Government to provide information on:

• (i)any measures taken in law and in practice, including as a follow-up to the Federal Supreme Court Decision, to address and prevent discrimination based on sexual orientation and gender identity in employment and occupation, and their impact on the integration of LGBT workers in the labour market and on their working conditions; and
• (ii)any cases of discrimination in employment and occupation based on sexual orientation and gender identity dealt with by the competent authorities, including sanctions imposed and remedies granted.

Real or perceived HIV status. The Committee notes that, according to a study carried out by UNAIDS, in 2019, 19.6 per cent of persons living with HIV experienced discrimination regarding their integration or maintenance in employment. The Committee notes with interest the adoption of: (1) Law No. 12.984 of 2 June 2014 which criminalizes discrimination against people living with HIV, including in employment and occupation, and establishes penalties of imprisonment and a fine; and (2) Law No. 14.289 of 3 January 2022 which makes it mandatory to preserve the confidentiality of HIV status, including at the workplace. In that regard, the Committee regrets the lack of information provided by the Government on the implementation 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 again asks the Government to provide information on:

• (i)any measures taken in law and in practice to address and prevent discrimination based on real or perceived HIV status in employment and occupation, in particular as a result of the activities carried out by the CPPT-Aids; and
• (ii)any cases of discrimination in employment and occupation based on real or perceived HIV status dealt with by the competent authorities, including sanctions imposed and remedies granted.

Persons with disabilities. The Committee notes that, according to the Brazilian Institute of Geography and Statistics (IBGE), in 2019, persons with disabilities had a much lower labour force participation rate (28.3 per cent) than other workers (66.3 per cent), and were concentrated in low paid activities. Persons with disabilities received, on average, two-thirds of the monthly remuneration of other workers, and their remuneration was lower in all economic sectors. The Committee notes recalls that Law No. 13.146 of 6 July 2015 on Persons with Disabilities prohibits discrimination on the ground of disability in employment and occupation (section 4 and parts I, II and III). Furthermore, the Committee notes that the United Nations (UN) Rapporteur on the enjoyment of human rights by persons with albinism expressed concern at the fact that persons with albinism face extensive discrimination and marginalization when it comes to accessing employment opportunities. He adds that, despite the fact that Federal Law No. 8213/91 establishes quotas to ensure that between 2 and 5 per cent of staff hired are persons with disabilities in any public or private enterprise with over 100 employees, both public and private sectors are still encountering difficulties in achieving the 2 per cent minimum quota. When persons with disabilities are hired, there is a tendency to relegate them to low-ranking jobs, sometimes outdoors (A/HRC/46/32/Add.1, 3 December 2020, paragraph 95). The Committee asks the Government to provide information on:

• (i)the measures taken to promote employment opportunities for persons with disabilities, including by ensuring the effective implementation of existing legislation concerning employment quotas, with regard to their integration in the open and formal labour market, and their outcomes;
• (ii)the employment rates of men and women workers with disabilities in both the public and private sectors; and
• (iii)any cases of discrimination based on disability dealt with by the competent authorities, including sanctions imposed and remedies granted.

Article 2. National equality policy. The Committee notes the Government’s indication that section 3 of Decree No. 9.571, of 21 November 2018, establishing the National Guidelines on Business and Human Rights, provides for the State’s responsibility to address discrimination at work and promote and support inclusion and non-discrimination measures, with the creation of incentive programmes for hiring vulnerable groups. In the context of the Universal Periodic Review (UPR), the Government indicates that the Ministry of Women, Family and Human Rights (MWFHR) is currently preparing the National Action Plan on Businesses and Human Rights (A/HRC/WG.6/41/BRA/1, 1 September 2022, paragraph 89). The Committee welcomes the adoption of Decree No. 9.883 of 27 June of 2019 establishing the National Council to Combat Discrimination (CNCD), within the MWFHR, which is responsible for recommending actions to be taken by the Government in order to address discrimination and intolerance. The Committee however regrets the repeated lack of information by the Government on the concrete actions taken to address discrimination in employment and occupation, including by the various bodies concerned with equality and discrimination. The Committee asks the Government to provide information on:

• (i)the specific actions taken to promote equality of opportunity and treatment in employment and occupation, with respect to all the grounds covered by the Convention in collaboration with social partners, and their outcomes; and
• (ii)the outcome of any periodic assessment of equality policies carried out by the above-referred bodies, including any recommendations arising from this assessment.

Articles 2 and 3. Equality of opportunity and treatment for men and women. Reconciliation of work and family responsibilities. The Committee notes that, according to the National Household Sample Survey (PNAD) of the IBGE, in 2019, the unemployment rate of women was still substantially higher than those of men (14.1 per cent and 9.6 per cent respectively) while their labour force participation rate of women remained low, being estimated at 54.5 per cent compared to 73.7 per cent for men. Black women were particularly affected as a result of their gender and racial vulnerabilities.

The Committee notes the Government’s indication that several measures were implemented with a view to improve the employability of women, in particular those in a vulnerable situation, such as Law No. 14.438 of 22 August 2022 which aims at enhancing formalization and entrepreneurship, including by facilitating access to micro-credit. With regard to workers with family responsibilities, the Committee welcomes the Government’s indication that the duration of the paternity leave was increased to 20 days for the armed forces (Law No. 13.717, of 24 September 2018) and in enterprises participating to the voluntary Empresa Cidadã Programme (Law No. 13.257, of 8 March 2016). The Government further refers to Proposed Constitutional Amendment No. 1/2018, which provides for the increase of the maternity leave to 180 days and of the paternity leave to 20 days, including in case of adoption. Pursuant to Decree 2.904 of 13 November 2020, the Ministry for Women, Family and Human Rights also launched the Work-Family Balance Programme to encourage enterprises to implement measures aimed at better conciliating work and family responsibilities, through the granting of the Family-Friendly Company Seal (SEAF). The Committee further notes the Government’s indication that, as a result of the work of the tripartite Working Group on the labour market and employability of women established in December 2021, the “Employs + Women and Youth” Programme (“Emprega + Mulheres e Jovens”) was adopted in 2022 (Provisional Measure No. 1.116, of 4 May 2022 and Law No. 14.457 of 21 September 2022). The Government states that this programme aims at promoting the employability of those who were most affected by the COVID-19 pandemic by focusing on four main axes: (1) supporting parenting in early childhood; (2) flexibility of work arrangements; (3) qualification of women in strategic areas for career advancement; and (4) supporting women’s return to work after the end of maternity leave. In that regard, the Committee notes that the Bancários/DF, FENAE and CUT regret the lack of consultations held by the Government before the adoption of this programme which, in their views, does not address the challenges currently faced by women in employment. These organizations consider that the programme will introduce a distortion in the Severance Premium Reserve Fund (FGTS)’s purpose by authorizing withdrawals for financing daycare for children or professional qualifications, while the FGTS was created to ensure that funds are available for employees in specific cases such as dismissal, illness or property acquisition. With regard to the Pro-Gender Equity programme, the Government highlights its positive contribution in raising awareness for employers on the need to minimize the obstacles to a larger participation of women in the formal labour market. In this regard, the Committee notes that the CNI and the IOE indicate that, as a result of public policies combined with efforts from the private sector, participation of women in the labour market has been increasing over the past decade. They refer, more particularly to initiatives implemented in collaboration with the National Service for Industrial Learning (SENAI) which resulted in an increased participation of women in sectors such as mining activities, transports, food and beverage, wood and furniture, mechanical industry.

Welcoming the measures taken by the Government to enhance the participation of women in the labour market, the Committee observes that, in its 2022 national report to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), the Government acknowledges that women, albeit having a higher educational level in relation to men, are still less likely to be employed, earn less, and take up the worst job positions (CEDAW/C/BRA/8-9, 17 March 2022, paragraph 186). The Committee asks the Government to pursue its efforts to implement proactive measures to promote equality of treatment and opportunity between men and women in employment and occupation and to provide information on:

• (i)the specific measures implemented to increase the participation of women in the labour market and in decision-making positions on an equal basis with men, and their outcomes; and
• (ii)the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors.

Articles 2, 3 and 5. Equality of opportunity and treatment irrespective of race, colour or national extraction. Indigenous peoples. Access to resources, including lands. Traditional activities. The Committee observes that, in recent years, several United Nations Experts, including the UN Special Rapporteur on the rights of indigenous peoples, have expressed concern at the situation of conflict surrounding territorial claims, and threats and attacks on the rights and integrity of indigenous peoples (UN experts, “Supreme Court must uphold indigenous land rights”, 23 August 2021; “UN experts deplore attacks on indigenous peoples”, 2 June 2021). In its 2021 report on the situation of human rights in Brazil, the IACHR also noted with concern the long delays which Quilombola communities are facing regarding access to land ownership. The IACHR further refers to cases where indigenous workers were rescued from forced labour, such as those pertaining to the Terena ethnic group in Mato Grosso do Sul (IACHR, Human rights situations in Brazil, 2021, paragraphs 40 and 129). The Committee notes with concern this information and refers to its 2020 observation and direct request on the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). Recalling the importance of access to land and resources for indigenous peoples’ subsistence and activities, the Committee asks the Government to provide information on:

• (i)the steps taken to ensure their equal access to, and treatment in, employment and occupation, including directed at protecting their right to engage in their traditional occupations and livelihoods without discrimination; and
• (ii)any cases of discrimination in employment and occupation of indigenous peoples dealt with by the competent authorities, including sanctions imposed and remedies granted.

Monitoring and enforcement. The Committee notes that the CNI and the IOE indicate that many companies have adopted internal policies and hotlines that preserve the identity of the workers who can report situations of discrimination at work. It welcomes the Government’s indication that, in 2021, the National Coordination to Combat Discrimination at Work and Promote Equal Opportunities (CONAIGUALDADE) was created under the Ministry of Labour and Welfare in order to prevent and address discrimination at work. The Committee notes the summary information provided by the Government on several judicial decisions explicitly referring to the Convention handed down in 2019 and 2022. It regrets however the lack of comprehensive information provided by the Government on the number or content of cases of discrimination dealt with by the competent authorities. The Committee therefore asks the Government to provide information on:

• (i)the number, nature and outcomes of cases of discrimination in employment and occupation dealt with by the labour inspectorate, courts or other competent authorities, including penalties applied and remedies granted; and
• (ii)the measures taken, in particular by the CONAIGUALDADE, to raise public awareness, and to enhance the capacity of the competent authorities, to identify and address cases of discrimination.