In December 2020, the Committee for the Promotion of Equal Opportunities and the Elimination of Discrimination at Work ("COORDIGUALDADE") from the Public Labor Prosecution Office ("MPT") issued Technical Note 02/2020 ("Technical Note") to guide the agency in defending the rights of the LGBTQIA+ population in the labor context.
According to the Technical Note, MPT guides that the Attorneys of MPT recommend to employers (companies, public agencies, individuals, and professional unions, from all economic sectors and non-profit entities) that in legal actions, protocols and operational guidelines, that they adopt the seven principles described below:
- 1) Psychosocial risks: The employer should provide a work environment that protects not only the physical but also the psychosocial health of the LGBTIQIA+ employee. To ensure this, the employer should have a strategy to prevent psychosocial harm and to apply sanctions for offenses.
- 2) Social name: The employer should use the employee's social name—the name they prefer regardless of whether they have legally changed their name. This applies to all transgender, "travesti " and transsexual employees, as well as all those whose identity documents do not necessarily reflect their gender. Employers should use the social name, for example, on the registration of data and in any communication related to the employee, including their email address, job description, entry in the company's list of phone extensions, user name on computer systems, registration in events held by the institution and issuance of certificates at the events.
- 3) Restrooms use: Transgender people are free to access gender-segregated spaces, such as restrooms, according to their gender identity. To instead create spaces for the exclusive use of LGBTIQIA+ employees, would be a form of discrimination..
- 4) Parenthood: LGBTQIA+ employees are allowed to use legally granted parental leave, whether for the birth or adoption of a child.
- 5) Balance of professional and family responsibilities: In accordance with Technical Notes 3 and 4 from 2020, in setting activities, work hours and production targets, the employer should consider the LGBTQIA+ employee's need to balance professional and family responsibilities, especially in single-parent households, in order to avoid work overload and overtime work. Also, the Technical Note suggests that, during the coronavirus crisis, the option to perform work remotely using electronic equipment and systems be offered to employees who live with children or elderly or disabled people; who have, or whose dependents or other household members have, a chronic disease or condition that may be clinically aggravated by COVID-19; or who are pregnant or breastfeeding.
- 6) Violence and harassment: The employer should adopt measures to prevent LGBTQIA+ employees, outsourced employees, interns or clients from being directly or indirectly exposed to violence and harassment rooted in LGBTphobia or transphobia and sexual harassment and cyberbullying based on sexual orientation or gender identity.
- 7) Domestic violence: If noticing signs of domestic violence, especially in people who express a female gender identity, the employer should inform the employee about the public services that address domestic violence , such as "Disque 180," the State Public Defender's Office, Casa da Mulher Brasileira and Women's Police Stations, so that the victim can take protective measures provided for in Law nº 11,340/2016. This law ensures, when necessary, removal from the work environment for a period of six months with the guaranteed maintenance of the employment relationship, as provided for in Article 9, paragraph 2, item II.
The Technical Note also suggests the implementation of good practices in which the right to parental leave has to be recognized for the entire workforce, regardless of sex, gender or sexual orientation.
Therefore, it is essential that employees and employers pay attention to the MPT guidelines. Compliance with the principles potentially avoids labor claims by employees, inspections by labor authorities and MPT procedures.
January 20 2021
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This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.