State affirmative action against discrimination against women in the workplace: equal pay and CIPA+A
The Law 14.611/2023, which guarantees equal pay and criteria for equal pay for men and women workers, was sanctioned as an affirmative policy for the right to substantial equality, and has heated up existing discussions about the labor market, employability, employee retention, protection measures and, especially, about equal pay for men and women.
Despite the existence of a constitutional provision to the effect that men and women are equal in rights and obligations, Brazil's participation in International Conventions regarding discrimination against women and the rule contained in art. 461 of the CLT, a concretização dos preceitos normativos ainda é falha.
In fact, the gender pay gap still exists in practice.
In this vein, Law 14.611/23 was recently published which, in addition to establishing equal pay policies, provides for inspection measures by the Ministry of Labor and Employment (MTE) in order to curb discriminatory practices.
In cases of non-compliance with Law 14.611/23, the MTE's inspection measures can result in the imposition of an administrative fine equivalent to ten times the value of the salary (considered to be that which should be received by the discriminated employee) and, in the event of a repeat offense, the fine is doubled. Furthermore, the imposition and payment of the administrative fine does not exclude the possibility of an eventual conviction, in the judicial sphere, of compensation for moral damages, since the institutes have different natures and purposes.
At the administrative level (MTE), for inspection purposes, all companies with one hundred or more employees are obliged to keep half-yearly reports on salary and remuneration transparency. In the event of failure to make these documents available, a fine of up to 3% of the payroll will be imposed, limited to one hundred minimum wages (currently R$132,000).
It should be noted that, according to the approved text, if any inequality is found in the presentation of half-yearly reports, companies must present and implement an action plan stipulating targets and deadlines in order to reduce the existing differences. In other words, the implementation of an action plan, such as a job and salary policy, is a preventative alternative to be considered by the employer as a way of avoiding administrative penalties.
It is worth noting that both the law in question and the Labor Courts have been establishing protocols for judgments with a gender perspective, in order to advance in the realization of equality and equity policies.
Law 14.611/23, in this vein, for part of the doctrine and society, brings with it a great advance in the discussion about discrimination against women; while, for others, the perspective is exactly the opposite. Instead of appeasing the situation, employers will be able to take measures, often drastic ones, to comply with the law.
Another affirmative action by the state to prevent discrimination was the establishment of the EMPREGA + MULHERES program (Law 14.457/22), which aims to integrate and maintain women's employment in the labor market through various flexibilities, such as working hours, vacations, support for parenthood, among other benefits and aids. Law 14.457/22 also draws attention to measures to prevent and combat harassment, making changes to the duties of the Internal Accident Prevention Commission (CIPA). With the task of preventing sexual harassment, including the creation of reporting channels, the current name of the commission has changed to the Internal Commission for the Prevention of Accidents and Harassment (CIPA+A).
Finally, a brief analysis of the current legal framework shows that there is still unequal treatment between men and women. However, the "equalization" of inequalities cannot serve as an obstacle to the employability and retention of women in jobs, and it is up to employers to follow the evolution of legal precepts as a form of preventive and assertive action in the pursuit of their corporate purpose.
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