The protection of pregnant women in labor relations in the public sector and contentious-administrative labor justice

Abstract

The central focus of this article is to analyze the protection afforded to working mothers during pregnancy or while breastfeeding against null or unjustified dismissal within the context of an employment relationship in the public sector, and to determine how this protection is enforced despite the absence of explicit regulations regarding this type of dismissal in public labor law. Thus, this analysis has taken into account the rights recognized in our Constitution (the right to work and special protection for maternity), the body of international conventions (ILO Conventions Nos. 183 and 158), the systematization of the applicable labor regulatory framework, as well as recent case law from the Constitutional Court and the Supreme Court—specifically eight rulings in which interpretive rules were developed for this type of proceeding.

Furthermore, the scope of administrative labor litigation is addressed in order to provide effective judicial protection to safeguard the rights of vulnerable groups, based on the power of full jurisdiction, the principle of integration, and the Brasilia Rules; therefore, by way of conclusion, the following operational rules are primarily proposed: i) there is enhanced protection for working mothers (during pregnancy and the breastfeeding period), which imposes a stricter standard of proof and justification on the employer; consequently, the termination is deemed invalid (null and void) when there is evidence of infringement upon maternal rights; ii) the lack of specific regulatory provisions in the public sector is not a determining factor for ordering reinstatement and does not presuppose her appointment, as entry into the civil service must be based on merit; and iii) adequate redress must prioritize reinstatement, reserving compensation for cases in which a return to work is unfeasible for objective and duly justified reasons.