Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 55-56

55

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In Portugal, positive action is permitted in national law in respect of racial or ethnic origin,

religion or belief, disability, age, disability and sexual orientation.

Article 13 of the Constitution permits positive action on the grounds of racial or ethnic

origin, religion or belief and sexual orientation. Age and disability are not expressly

mentioned, but as the enumeration is exemplificative, they are deemed to be included

therein.

Articles 69 to 72 of the Constitution provide for positive actions on the grounds of age

(childhood, youth and old age) and disability.

Article 2(3) of Law 93/2017 allows for positive action measures.

Article 27 of the Labour Code states that positive action measures are not discriminatory.

According to this provision, legislative measures shall not be considered discrimination if

they are of a specifically defined temporary nature and benefit certain disadvantaged

groups, including groups defined by reference to gender, reduced working capacity,

disability or chronic illness, nationality or ethnic origin, and if they are enacted with the

aim of guaranteeing the exercise, in conditions of equality, of the rights provided for in the

Code and of correcting a situation of factual inequality that persists in society.

In practice, there are no specific positive measures in respect of religion/belief or sexual

orientation.

The Programme of Employment and Support for People with Disabilities and Incapacities

(Programa de Emprego e Apoio à qualificação das pessoas com Deficiência e

Incapacidades) provides several measures, and specific guidance, to support people with

disabilities who experience difficulties in beginning and making progress in their careers.81

Legislation on tenancy rights traditionally included specific protection for tenants aged 65

years and over and with a degree of incapacity higher than 65 % (today, this protection is

being phased out, and applies only to previously agreed contracts). The option to include

such positive actions – for instance, making it impossible for landlords to unilaterally

terminate rental contracts – was disputed, but the Portuguese Constitutional Court, in its

decision of 11 October 2000, found that the distinction established by the provision in

question was not arbitrary. For the court, it seemed reasonable to resolve the conflict in

favor of tenants, since they need more protection from the law.82

Article 3(5)(b) of Law 83/2019 (Basic Law on Housing) explicitly states that housing policy

should be conducted according to equality of opportunities and territorial cohesion

principles ‘with positive discrimination measures, whenever necessary’.

b) Quotas in employment for people with disabilities

In Portugal, national law provides quotas for the employment of people with disabilities.

81 Portugal (2012), Programa de Emprego e Apoio à qualificação das pessoas com Deficiência e Incapacidades

(Programme of Employment and Support for People with Disabilities and Incapacities), available at:

www.cartasocial.pt/pdf/emprego_pdi.pdf.

82 Constitutional Court, judgment of 11 October 2000, No. 420/2000, available at: https://dre.pt/pesquisa-

avancada/-

/asearch/3317294/details/maximized?emissor=Tribunal+Constitucional&perPage=100&types=JURISPRUDE

NCIA&search=Pesquisar.