Entities go to the STF against gender pay equality law

The National Confederation of Industry (CNI) and the National Confederation of Commerce of Goods, Services and Tourism (CNC) filed a Direct Action of Unconstitutionality (ADI) in the Federal Supreme Court (STF) against the so-called “equal pay law between men and women”.

Regulated by decree in November last year, the law affects companies with more than 100 employees, determining equal pay between genders for the same role, under penalty of fine.

According to the regulations, companies must provide information about their internal equality policies through the Emprega Brasil portal. Based on the information and data sent monthly through the eSocial system, the government will prepare a “salary transparency report” that must be widely disseminated on each organization’s website or institutional channels by March 31st.

In the action filed with the STF, the entities ask for the suspension of sections of the law that disregard “legitimate hypotheses of salary differences based on the principle of proportionality”. The argument is that the reports are not capable of demonstrating all the remuneration criteria that could justify possible salary differences.

Therefore, the main appeal to the Supreme Court is that administrative penalties should not be validated against companies before the deadline established for the right to defense. The purpose of the entities is to ensure that any eventual penalty for moral damage “is only cumulative if [estiver] present situation of discrimination in the strict sense (requiring intent), without this hypothesis being equated with the mere objective existence of a salary difference, in line with the principle of legal certainty”.

The confederations guarantee that they are defenders of “material equality between men and women”, which is “an unequivocal constitutional objective”, “This does not mean, however, that the means by which the aim is to achieve said equality are exempt from judicial control, especially when its mechanisms and procedures violate and harm expensive principles of the Charter [Constituição]”, says the action filed with the STF.

Another point questioned in the action is the privacy of employee data and business strategies. The entities ask that the reports “not contain (even in theory) absolute values ​​of salaries or average (or median) salaries”, which could result in “the disclosure of personal data or strategies and business secrets”.