The rules that established mechanisms to guarantee equal pay between men and women are valid. With this understanding, the Plenary of the Supreme Federal Court decided this Thursday (May 14), unanimously, that Law 14.611/2023, known as the Equal Pay Law, is constitutional.

The discussion took place within the scope of three actions (ADC 92, ADI 7.612 and ADI 7.631) that specifically addressed articles 3 and 5, paragraphs 1 and 2, of Law 14.611/2023, in addition to sections of Decree 11.795/2023 and Ordinance 3.714/2023 of the Ministry of Labor and Employment that regulate the preparation and disclosure of salary reports.

The controversy revolved around the obligation imposed on companies with more than one hundred employees to publish, every six months, reports containing data on salaries, compensation, and job occupancy by men and women, as well as the scope of the transparency obligation and the balance between combating wage discrimination and protecting the economic activity of companies.

The law also provides for the adoption of action plans to reduce inequalities identified in surveys.

Full validity of the law

The rapporteur for the three cases, Minister Alexandre de Moraes, voted in favor of the full constitutionality of Law 14.611/2023 and the regulations governing its application.

“There is no equal pay for men and women performing the same job. This is not a subjective fact, it is an objective fact that I bring to my vote. And we know that in Brazil there is still a wage gap between white men and black men, white women and black women. Is this difference permitted by the Constitution? Obviously not,” stated Alexandre.

In his vote, he emphasized that combating gender discrimination and guaranteeing equal pay between men and women are already enshrined in the 1988 Federal Constitution, and that the 2023 law only seeks to make these obligations effective. Alexandre argued that the constitutional provision creates a “normative duty” of equal pay, and that it is not plausible for companies to claim ignorance of this obligation.

The judge spoke about the need for cooperation between the public and private sectors to ensure compliance with the law.

“There is a need for cooperation between the public and private sectors. It is not only the public sector that must respect equal pay for men and women.”

The minister rejected arguments that the rule imposed automatic penalties simply for detecting salary discrepancies. According to him, the sanctions only apply to companies that fail to comply with the obligation to disclose the reports required by law.

Alexandre observed that these reports have an essentially supervisory purpose and serve as a basis for the formulation of public policies aimed at reducing disparities in the labor market. He also dismissed allegations of violation of privacy and the General Data Protection Law by highlighting that the information disclosed is anonymized, without individual identification of workers.

The rapporteur also refuted arguments that publishing the reports could affect companies and their interests:

“These claims that the editing and publication of the reports could affect companies are completely unreasonable, both from a legal and a practical standpoint,” said Alexandre, citing the fact that, to date, no company has filed a lawsuit demonstrating this.

In light of this, the rapporteur voted to dismiss the lawsuits challenging the law and to uphold the lawsuit seeking recognition of its constitutionality.

Transparency as an instrument of equality.

The second to vote, Minister Flávio Dino, fully agreed with the rapporteur, stating that the law seeks to make material equality between men and women in labor relations a reality.

The judge agreed that the actions foreseen in the regulation are not punitive in nature. According to Dino, these instruments function as cooperative measures aimed at reviewing business practices and addressing wage inequalities.

The minister also defended the salary transparency mechanisms foreseen in the regulation, concluding that they respect the rights to privacy and data protection, precisely because the regulation adopted anonymization and information grouping criteria capable of preventing the individual identification of workers.

Emphasis on preserving privacy.

The third to vote, Minister Cristiano Zanin, followed the rapporteur in defending the constitutionality of Law 14.611/23 and stated that the law concretizes the guarantee of equal pay foreseen in Article 7 of the Constitution. He also considered the transparency reports, action plans, and the possibility of compensation for moral damages in cases of wage discrimination to be valid.

Regarding privacy protection and compliance with the LGPD (Brazilian General Data Protection Law), Zanin initially raised reservations and suggested that the decision should, from the outset, provide an unequivocal interpretation to prevent any possibility of individual identification through the cross-referencing of salary data.

Minister Nunes Marques, who voted immediately after Zanin, also expressed this concern. He highlighted that the advancement of technological tools capable of identifying information could generate risks in certain business contexts. However, despite this observation, he fully agreed with the rapporteur.

Along the same lines, Minister André Mendonça expressed similar concerns, but followed the rapporteur’s vote.

At the end of the trial, Zanin adjusted his vote to adhere to the solution proposed in the plenary session, arguing that the ruling should explicitly state that companies cannot be held liable for the failure to disclose reports if sub-legal regulations authorize the exposure of data whose publication is prohibited by the law itself.

Equality requires continuous action from the State.

The only woman in the current composition of the court, Justice Cármen Lúcia, stated that the trial exposes fundamental discussions about the effective realization of the equality foreseen in the Constitution.

In her vote, she recalled that discrimination against women continues to be present in everyday life, often in a silent way, reflecting not only in salaries, but also in the unequal division of tasks, opportunities for promotion, and professional devaluation.

For her, the Constitution is not limited to ensuring formal equality between men and women, but imposes a permanent obligation on the State and the legislature to implement concrete measures aimed at reducing inequalities.

Cármen observed that the pay gap tends to be more pronounced in the private sector, since in public administration, salaries are usually linked to the positions held. Even so, she emphasized that discriminatory practices also persist in the public service, including through excessive workload and unequal distribution of duties.

The judge also highlighted the historical and structural nature of gender discrimination, noting that certain activities have traditionally been associated with men or women, which has contributed to differences in economic recognition and professional valuation.

In the end, the minister followed the rapporteur, emphasizing that, provided the anonymization of the data is preserved, there is no unconstitutionality in the law, nor in the regulatory acts.

With the same understanding, Minister Luiz Fux acknowledged that both the transparency reports and the action plans fulfill constitutional provisions that prohibit salary discrimination based on sex. He noted that the data released is anonymized, which, in his view, preserves the privacy of employees and the reputation of companies.

Fux also highlighted that any corrective measures can only be applied in cases of wage inequality without legitimate justification, always observing the principles of adversarial proceedings and due process of law.

Affirmative action and proportionality

The court’s most senior justice, Gilmar Mendes, also agreed with the rapporteur’s understanding and stated that the legislation goes beyond simply prohibiting discrimination by establishing an active policy to promote substantive equality between men and women.

The judge emphasized that the Constitution has already imposed on the public authorities the duty to adopt concrete measures to reduce inequalities and classified the use of salary transparency as legitimate as an instrument to identify pay disparities, guide state action, and support public policies aimed at combating discrimination.

Gilmar acknowledged that the rule may impose limitations on free enterprise, but understood that such restrictions are proportionate and justified given the persistence of wage inequalities.

Regarding the action plans, the minister argued that they do not represent automatic punishment and can only be applied in the face of unjustified and discriminatory salary disparities, without disregarding the guarantees of due process and the right to a full defense.

Regarding data protection, he highlighted that the methodology adopted uses anonymized information and was deemed adequate by the National Data Protection Authority. He also mentioned a statement from CADE (Administrative Council for Economic Defense) according to which the disclosed data does not have a sensitive competitive nature.

Structural inequality and multiple discrimination

Last to vote, the president of the Supreme Federal Court (STF), Minister Edson Fachin, stated that gender equality cannot remain merely an abstract concept in constitutional declarations, requiring public policies and affirmative actions aimed at its effective realization. “The persistence of inequality reveals that formal equality is not yet effective.”

Fachin observed that gender discrimination in the labor market manifests itself indirectly, through various forms of segregation, the penalization of motherhood, and the lower economic valuation of activities predominantly performed by women.

The judge proposed an intersectional reading of the problem, stating that factors such as race, social class, and territory deepen the effects of wage inequality and economic exclusion. “Gender inequality in the workplace does not affect all women in the same way.”

For him, confronting these distortions is directly linked to the implementation of the Constitution, the promotion of social justice, and the strengthening of the democratic rule of law.

ADC 92
ADI 7.612
ADI 7.631