Partido Socialista Brasileiro v. Ministro de Estado da Previdência e Assistência Social, ADI No. 1.946, 2003.
To protect equality between men and women in the workplace, Brazil’s Supreme Federal Tribunal construed a constitutional amendment as not limiting the salary level that social security would cover for pregnancy-related leave.
In 1998, Congress approved Amendment 20 to the Brazilian Federal Constitution of 1988, thereby altering the country’s social security system. The amendment imposed a ceiling of R$1200 on social security benefits per beneficiary. On its face, the R$1200 maximum purported to apply neutrally to several benefits categories, including with respect to pregnancy-related leave.
In January 1999, the Partido Socialista Brasileiro filed a lawsuit at the Supremo Tribunal Federal challenging the amendment’s discriminatory effect on women. The party cited constitutional protections, including Article 7, Section XVIII, which guarantees that an employee be paid her full salary during pregnancy-related leave. The party argued that if Amendment 20 were construed as imposing a cap on social security coverage during pregnancy-related leave, the amendment would incentive employers to evade the R$1200 cap by discriminating against women in hiring or in the setting of salary levels.
In a unanimous decision, the Supreme Federal Tribunal held that Amendment 20’s application to pregnancy-related leave conflicted with the Brazilian constitution’s equal protection provisions prohibiting sex discrimination. The Court warned that applying the amendment’s ceiling to pregnancy-related leave would be retrogressive and that such application could not be presumed to have been Congress’s intent absent express language. The Court ordered that Amendment 20 be interpreted in a manner consistent with the Article 7 of the constitution, such that the social security cap did not extend to pregnancy-related leave.
As a result of this case and other later reforms, women in Brazil currently have the right to 100% pay for up to 180 days of pregnancy-related leave in the federal public sector and 120 days of such leave in the private sector, the latter of which can be extended to 180 days if the employer voluntarily adheres to the Company-Citizen Program. Employers get compensated out of social security funds for the salaries paid to their women employees during these periods.
This case upholds a woman’s right to a full salary during pregnancy-related leave. The decision also strongly acknowledges that sex discrimination can stem from facially neutral rules. The Court understood that Amendment 20’s application to pregnancy-related leave would be unconstitutional because it would incentivize gender-based discrimination in the field of employment.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.