INEQUALITY IN MATERNITY LEAVE IN BRAZILIAN LABOR LAW: AN ANALYSIS OF THE INCOMPATIBILITY BETWEEN THE 120 AND 180-DAY PERIODS

Abstract

The 1988 Federal Constitution guarantees, in Article 7, item XVIII, the right to 120 days of maternity leave without loss of employment or salary. The Consolidation of Labor Laws (CLT), in line with the constitutional text, reinforces this period. However, Law No. 11,770/2008, by establishing the Empresa Cidadã Program, extended the possibility of leave to 180 days, applicable to federal public servants and employees of private companies that join the program. This normative duality creates inequality between women in the public and private sectors, and even within the private sector itself, contradicting the constitutional principles of equality (Art. 5, caput, CF/88) and full protection of the child (Art. 227, CF/88). This article aims to critically analyze the compatibility of different maternity leave periods with fundamental social rights, assessing the practical impacts of current legislation, the limitations of the Empresa Cidadã Program, and possible legislative alternatives. The research also considers the theoretical framework on social justice, maternity protection, and gender equity, as well as examining case law and statistical data that highlight the effects of normative inequality. Finally, it proposes measures to standardize maternity leave rights as a way to ensure greater justice and social protection.