The equal legal treatment of paternity leave and maternity leave: the path to equality sexist labor market
| Autor | Maria Cecília Máximo Teodoro - Miriam Parreiras de Souza |
| Ocupação do Autor | Post-Doctorate in Labor Law from the Universidad Castilla-La Mancha, with research grant from CAPES - Master in Labour Law from PUC / MG |
| Páginas | 1399-1421 |
Special Workshop: Democracy, Social Justice and Labor • 1399
The equal legal treatment of paternity
leave and maternity leave
The path to equality sexist labor market
Maria Cecília Máximo Teodoro1
Miriam Parreiras de Souza2
Abstract: Women’s work is today mainspring of the capitalist system and its
recovery is a major challenge of modernity. The woman does not experience
extremely isonomic conditions in the labor market as a result of a typical sys-
tem based on unequal forces - capitalism. Historical, philosophical, cultural and
physiologicalreasons aemptto explainthe dierentialtreatment receivedby
women in the labor market.
Foralongtimethewomantookcareofthehouseworkwhilementto
provide families and homes. From the standpoint of philosophical and cultural,
the woman carries the stigma of a human being more fragile, more emotional
and benevolent. Since man is understood to be a more rude, rigid and rational.
Physiologically, only the woman was given the gift of gestating life. Thus, it
would be the woman the greater responsibility of caring for children and the
home.
Men and women hold in the Brazilian Federal Constitution the sta-
tusof equalrights andduties But thisequality isarmed asa human right
justbecausemen andwomenare dierentinthe realityintheworldoffacts
Operatorstthe legalacumento understandthedierent whatbeerwayto
givedierenttreatmentandwhen theunequaltreatmenteectivelygenerates
isonomic conditions. Already a breakthrough achieved by fundamental social
rights, have become universalized and value provided in our Constitution (art.
XXCFstillindeedtogivespecialincentivestothewomenslabormarket
InBrazilthelawprovidesforthewelfareofthewagematernitybenet
for the mother or adopter, for 120 days, which is not levied directly the employer
1
TEODORO, Maria Cecília Máximo. Post-Doctorate in Labor Law from the Universi-
dad Castilla-La Mancha, with research grant from CAPES; Doctor in Labour Law and
Social Security from the USP; Master in Labour Law from PUC / MG; Teacher in Master
and Graduate of PUC / MG.
2
SOUZA, Miriam Parreiras de. Master in Labour Law from PUC / MG; Professor in
Graduate of PUC / MG. Lawyer.
1400 • XXVI World Congress of Philosophy of Law and Social Philosophy
because it is paid by Social Security. Already paternity leave gives the father the
right to be absent from work for only 5 days.
Thus, in order to meet the contemporary challenges of achieving social
justice, the objective is to demonstrate in this article that maternity leave gives
an illusory equality between men and women and exempts the employer only
indirectly. And the constitutional provision of so short paternity leave, in fact,
generates inequality, rather than equality, because it hinders the access and
retention of women in the labor market and creates greater cost to the employer
who hires workers.
Relying on broader social, economic and legal reasons, we intend to demon-
strate the need to give equal treatment to men and women with regard to ma-
ternity and paternity leave.
Keywords: Parental leave. Maternity leave. Paternity leave.
1 Introduction
The female population growth in the Brazilian labor market was
oneofthe most signicant social changes occurring inthecountry in
recent decades. The women’s presence in the Brazilian labor market is
becoming more intense and diverse and shows no tendency to retreat,
despite the successive economics crises that have plagued the country
since the 80s.
This reality, however, does not mean that women have achieved
thesamemensworkingconditionsRemunerationdierencesoccupy-
ing lower positions and discrimination of various kinds are a few exam-
plesofdierentialtreatmentthatisaimedatwomeninthelabormarket
According to research conducted by the Brazilian Institute of Ge-
ography and Statistics3, the average remuneration of Brazilian women
is equivalent to 72.3% of the men’s average remuneration, it means that
women’s payments remains 28% lower than men’s. Even in occupations
where higher education is required, the wage gap is shown to be higher
among men and women.
ThereasonforthisdierenceistheobjectofthisarticleItintends
to demonstrate that one of the main factors preventing the improvement
of women’s working conditions is the fact that they get pregnant.
3
IBGE. Salário das Mulheres permanece 28% inferior aos dos homens nos últimos
três anos. 2012. Available in http://saladeimprensa.ibge.gov.br/noticias?view=noti-
cia&id=1&busca=1&idnoticia=2096. Acess in 16.09.2013.
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