The Regional Labor Court of the 2nd Region, by majority vote, recognized the right to temporary job security for a non-pregnant worker in a same-sex relationship who was dismissed while her partner was pregnant.
The decision was based on the understanding established by the Supreme Federal Court (STF) in Topic 1.072 of general repercussion, which ensured the right to maternity leave for non-gestational mothers. For the TRT (Regional Labor Court), this interpretation should also extend to the job security guarantee provided for in article 10, II, "b", of the ADCT (Transitional Constitutional Provisions Act), since both protections have the same objective of supporting the family bond and motherhood.
The panel, however, denied the request for recognition of discriminatory dismissal, understanding that the testimonies and documents demonstrated that the dismissal occurred due to unsatisfactory performance, and not because of the employee's sexual orientation or maternal status. Therefore, the company was ordered to pay compensation corresponding to the salaries and other labor benefits related to the period of job security, between the date of dismissal and five months after childbirth.
The court also ordered the reimbursement of amounts paid by the employee for health insurance after termination, limited to six months after the birth of her children, as stipulated in the category's collective bargaining agreement. According to the report, "although the Supreme Federal Court did not expressly address the issue in its ruling, a non-pregnant employee who enjoys maternity leave is also entitled to job security from the confirmation of her partner's pregnancy until five months after childbirth, as this job security is the instrument that ensures the effectiveness of the leave guaranteed by the Supreme Federal Court."
The court also highlighted that the benefit is not linked to biological factors, but to the importance of the bond between mother and baby in the first months of life, based on constitutional principles such as the protection of motherhood, childhood, and the guarantee of comprehensive protection.
Furthermore, it is important to highlight that the understanding established by the Brazilian Supreme Court (STF) in Case 1,072 specifically recognized the right to maternity leave for non-gestational mothers in female same-sex unions, consolidating an important advance in matters of equality and protection of parenthood. However, the eventual extension of this right to men in same-sex unions has not yet been defined, since the respective judgment remains pending, with consideration scheduled for 2025.
The team of Labor Law Simões Ribeiro Advogados is available to answer any questions you may have on this topic.
