Weekly Newsletter produced by Manesco law office with articles and relevant information.
JULY, 03 - 2023
nº 886
A new look at contractual risks
(Foto: Unsplash)
Maís Moreno
by Maís Moreno

Originally published on JOTA

Risk analysis in public and private contracts is gaining new dimensions. Social responsibility actions by public and private institutions, already fundamental for a long time, today result from increasingly stricter legal provisions. These standards impact the risk analysis, management and financial viability of contracts and public and private businesses.

If before adopting programs and carrying out actions to combat racism or promote gender equality, for example, were considered optional, they gradually become corporate and government obligations.

Today we will focus on risk analysis based on gender equity. In our next column, we will talk about affirmative actions for racial equity in public procurement and financing with state-owned companies.

On April 3, Law 14,540/2023 was enacted. It instituted the Program to Prevent and Combat Sexual Harassment and Other Crimes against Sexual Dignity and Sexual Violence within the scope of public administration, direct and indirect, federal, state, district, municipal and private institutions delegated to public services. Failure to comply with this rule adds to the institutions' labor and reputational risks.

The program has three fundamental principles: preventing and combating sexual harassment and other sexual crimes, training public officials to deal with these issues, and creating educational campaigns to combat any form of sexual violence. Therefore, the law aims to protect the rights of women victims of harassment.

A positive example in this area is the city of Salvador. There is a similar program created even before the approval of the federal law.

Although laws related to gender equality are still under development, Law 14,540/2023 represents an important step in this direction.

The tendency to bring protective guarantees to women is also evident in the new Law on Public Procurement and Administrative Contracts. There, the “development by the bidder of equity actions between men and women in the work environment” is a tiebreaker criterion (which depends on regulation). It also focuses on victims of domestic violence, as the notice may allocate a minimum percentage of labor to them. In 8.666/1993, the practice was foreseen only for those coming from or leaving the prison system – mostly men.

In addition to the norms already enacted, there are numerous bills. Among them, PL 1085/2013 stands out, which is urgently being processed in the Senate and provides for equal pay for men and women for the exercise of the same function, with sanctions in case of non-compliance.

Currently, in addition to ethical issues, public and private companies have a legal obligation to promote gender equality and combat violence against women. This concern is not just a moral issue. It is also a commercial and legal obligation. Companies that take a precautionary approach avoid risks and increase their chances of doing business with the government.

Law 14,540/2023 still needs to be regulated, providing details on the measures that private companies must adopt. Participating and giving an opinion on the regulations to come is a good opportunity for companies to align themselves with government requirements and improve their methods of combating gender inequalities right now.

After all, even before regulation, companies are already at risk if they do not comply with the new standards and requirements. Disagreement with gender equity standards brings liabilities with the potential to negatively influence the participation of private individuals in public procurement, as well as in obtaining financing.

Directors, directors and managers who anticipate this issue will play a strategic role. They can serve as examples of good engagement in the ESG agenda, which offers principles and guidelines to mitigate social risks – such as adopting diversity and inclusion policies, guaranteeing fair working conditions and respecting human rights.

More than an improvement in compliance standards, what is presented is a new horizon for public and private businesses.

A advogada Maís Moreno tornou-se Conselheira da Iniciativa Empresarial pela Igualdade. Além disso, Maís também foi indicada para compor o Grupo de Trabalho para elaborar o Protocolo de atuação do Ministério Público com perspectiva de gênero. A proposta foi apresentada durante a 5ª Sessão Ordinária do Conselho Nacional do Ministério Público (CNMP) e oficializada por Portaria publicada no dia 28.jun.2023.

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