On 30th March 2021, the Federal Senate approved the Bill of Law No. 88/2015 which imposes a fine on companies that remunerated differently employees performing the same function, due to gender, age, color or family status.
In general terms, the Bill of Law adds the 3rd paragraph to Article 401 of the Consolidation of Labor Laws (CLT), imposing a fine for the infringement of the provisions of item III of Article 373-A, which, prohibits considering gender, age, color or family status as a determining variable for the purposes of remuneration, professional training and opportunities of professional ascension.
The company practicing such discrimination, with salary distinction between employees, may be punished with the payment of a fine of up to five times the identified salary difference, limited to the respective hiring period or to the 5-year statute of limitation provided under Article 11 of the CLT, in favor of the employee who suffered the discrimination.
The provisions of the Bill of Law represent a great advancement and improvement to the Brazilian legal system, especially to insofar employment law is concerned, for the achievement of salary equity in employment relationships.
Employment law currently provides that if the activities of employees are identical, payment of the same salary is due, without any distinction due to gender, ethnicity, nationality or age. These are the provisions contained in Article 461 of the CLT and Precedent No. 6, of the Superior Labor Court, which determines equal pay for equal jobs.
The innovation of the Bill of Law is to give greater effectiveness to the Principle of Equality contemplated in the Brazilian Federal Constitution and emphasis on the punishment of the company in case of salary differences between employees resulting from a discriminatory act due to gender, age, color or family status.
Unfortunately, despite many internal company policies promoting equality in employment relationships, Brazil still registers a significant disparity between salaries, especially when reviewing salary differences between genders.
Based on recent data published by the IBGE (Brazilian Geography and Statistics Institute) on 4th March 2021, women earn about 77.7% of men’s salary, according to the information obtained for 2019.
This difference and disparity of amounts, for the same referenced period, is even greater when reviewing higher-income positions, such as executive and managerial positions, in which women earn only 61.9% of men’s income.
Despite the opinion of the vast majority of the population, that salary disparity is only “fictitious” and supposedly “nonexistent”, the figures demonstrate and effectively prove that the salary differentiation between genders still persists in current days.
It is important to point out that imposing a fine for discriminatory acts is not exclusively related to salary differentiation between genders, but also discriminatory acts based on age, color or family status, which reinforces the effectiveness of the Principle of Equality set forth by the Federal Constitution.
The Bill of Law intends to remove this archaic and backward mentality regarding salary distinctions in employment relationships, restraining and punishing companies that insist in practicing such discriminatory acts against their employees.
The Bill of Law was awaiting presidential sanction, but the President of the House of Representatives, Arthur Lira, asked to return the Bill of Law for a new review, since, as they noted, the changes made by the Senate were not limited to the drafting of the Bill of Law, but also as to the merit of the same being discussed.
After a new review and return of the review by both Houses, the Bill of Law shall proceed to presidential sanction, who, despite having publicly disagreed with the Bill of Law, according to the information disclosed, will probably sanction it.