Overview

The Brazilian Constitution in articles 3, 4 and 5 prohibits any type of discrimination. Law No. 10,741/03 enacted on October 1st, 2003 contains additional provisions aiming to protect individuals above 60 years of age. Article 3 of Law 10,741/03 lists the right to work as one of the rights of elderly individuals. Articles 26 to 28 govern the rights of elderly individuals to work. Article 27 prohibits discrimination in a recruitment process as a result of age, unless the sole characteristics of the job so requires. There is also an additional provision relating to “positive action” where in public exams (the recruitment process for all tenured civil servants) in case of a tie, it should be broken in favour of the older candidate.  Article 28 also says that the Government will create incentives for companies to hire elderly individuals.

Who's covered?

Everyone is protected by the general non-discrimination rules, but Law 10.741/03 is applicable to individuals with 60 years of age or more.

What enforcement/remedies exist?

A victim of discrimination may require payment of “moral damages” from the perpetrators of discrimination. Also, Law 10,741/03 provides for criminal prosecution where there is age discrimination that deprives an individual of access to their full exercise of citizenship (article 96). The perpetrator may be subject to imprisonment of 6 months and fines.

Article 100, II of the same law also provides that it is to deny work to someone as a result of his/her age is a crime subject to imprisonment from 6 months to one year.

How common are claims? What claims are most common and what are trickiest issues for employers?

Claims for age discrimination are not quite common and this is not within the main concerns of employers in Brazil.  However, it is a growing trend to have courts more focused on the rights of elderly people and there are precedents that show that the issue cannot be left aside. In 2003, the Superior Labour Court (Tribunal Superior do Trabalho) decided a case against Equitel (a company of the Siemens group) filed by an employee who were terminated upon reaching sixty years of age.  He alleged upon being terminated that the employer had an unwritten rule according to which employees reaching the age of sixty were terminated and asked the court to nullify his termination and order the defendant to reinstate him in his job.

Although the Defendant denied that it has such a termination rule, it was demonstrated in the course of the case that Equitel terminated at will most of its employees upon reaching this age. The court also asked the Prosecutors’ Office to investigate the company for discriminatory actions and take additional measures to coerce this if applicable.

The court specifically rejected the argument that the rule of termination at will would allow the employer to terminate without giving any reason for that and that the court’s reinstatement order would violate the employers’ right to termination at will.  The court, however, decided that Equitel abused its right to terminate at will by discriminating employees based on their age and raised the protection of the dignity of human beings as a ground for the decision.  The decision is also based on the legality (article 5 of the Federal Constitution) and non-discrimination (article 3, IV of the Federal Constitution) principles and the reporting Justice was followed unanimously by the other members of the 5th Chamber of the Superior Labour Court who said that the principles can in some cases prevail over legal provisions, in this case, the provisions guaranteeing the right to termination at will.

Therefore, the trickiest cases are those that can be filed based on the violation of the constitutional non-discrimination principle under an allegation of violation of the dignity of elderly people.  This is because Brazil has been going through an increasing use of constitutional principles as basis for court decisions consistent with the activism of judges.  These cases have attracted the attention of the media and can cause not problems such having to reinstate employees and payment of damages, but also significant damages to the reputation of the employer. Another threat that has to be considered is that of a class action that can be filed by the Labour Prosecutors’ Office, the employees’ unions or even an association of employees.  Brazilian rules on class actions are still quite permissive and vague (no class certification, for example) and class actions can be filed without the beneficiaries of the case having to do anything that could put their jobs in jeopardy.

Retirement ages

Retirement ages in Brazil are 65 years for age for men and 60 for women, but this depends on the beneficiary to prove that he/she made the required contributions to the social security system.  It is quite common, however, that employees acquire the right to retire based on their age and continue working in their regular jobs. Retirement is not deemed a cause for the termination of the employment agreement and does not exempt the employer from paying the mandatory severance termination.