Country report non-discrimination : transposition and implementation at national level of Council Directives 2000/43 and 2000/78 : Portugal 2023.
Date: 2023-10-26
Institutions: Directorate-General for Justice and Consumers
Subjects: Portugal, age discrimination, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, national law, religious discrimination, report, sexual discrimination, social policy

Portugal 

2023 

including summary 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-Discrimination: LGBTIQ, Age Horizontal Matters 
Unit D.2 Non- Discrimination: Anti-Racism and Roma Coordination 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Non-discrimination 

Transposition and implementation at national level of 
Council Directives 2000/43 and 2000/78 

Portugal 

Dulce Lopes and Joana Vicente 

Reporting period 1 January 2022 – 1 January 2023 

2023  Directorate-General for Justice and Consumers 

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Luxembourg: Publications Office of the European Union, 2023 

© European Union, 2023 

PDF 

ISBN 978-92-68-01465-3 

ISSN 2599-9176  doi: 10.2838/29708  DS-BB-23-022-EN-N 

Country report - Non-discrimination – Portugal – 2023 

CONTENTS 

3 

3.2.2 

3.1.1 

EXECUTIVE SUMMARY ........................................................................................ 5 
INTRODUCTION ................................................................................................ 13 
GENERAL LEGAL FRAMEWORK .................................................................. 16 
1 
THE DEFINITION OF DISCRIMINATION .................................................... 19 
2 
2.1  Definition of the grounds of unlawful discrimination within the directives ..... 19 
2.2  Multiple and intersectional discrimination ................................................. 22 
2.3  Assumed and associated discrimination ................................................... 23 
2.4  Direct discrimination (Article 2(2)(a)) ...................................................... 24 
Indirect discrimination (Article 2(2)(b)) ................................................... 25 
2.5 
Statistical evidence ................................................................... 26 
2.5.1 
2.6  Harassment (Article 2(3)) ...................................................................... 26 
Instructions to discriminate (Article 2(4)) ................................................ 28 
2.7 
2.8  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5  Directive 
2000/78) ............................................................................................. 30 
PERSONAL AND MATERIAL SCOPE ............................................................ 35 
3.1  Personal scope ..................................................................................... 35 
EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive 
2000/43 and Recital 12 and Article 3(2), Directive 2000/78) .......... 35 
3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) .............. 35 
Private and public sector including public bodies (Article 3(1)) ........ 36 
3.1.3 
3.2  Material scope ...................................................................................... 37 
3.2.1  Conditions  for  access  to  employment,  to  self-employment  or  to 
occupation,  including  selection  criteria,  recruitment  conditions  and 
promotion,  whatever  the  branch  of  activity  and  at  all  levels  of  the 
professional hierarchy (Article 3(1)(a)) ........................................ 37 
Employment  and  working  conditions,  including  pay  and  dismissals 
(Article 3(1)(c)) ........................................................................ 39 
Access to all types and to all levels of vocational guidance, vocational 
training,  advanced  vocational  training  and  retraining,  including 
practical work experience (Article 3(1)(b)) ................................... 39 
3.2.4  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers, or any organisation whose members carry on a particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) ........................................................................ 40 
Social  protection,  including  social  security  and  healthcare  (Article 
3(1)(e) Directive 2000/43) ......................................................... 40 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 42 
Education (Article 3(1)(g) Directive 2000/43) ............................... 43 
Access to and supply  of  goods and  services that are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 48 
3.2.9  Housing (Article 3(1)(h) Directive 2000/43) ................................. 50 
EXCEPTIONS ............................................................................................. 53 
4.1  Genuine  and  determining  occupational  requirements  (Article  4  Directive 
2000/43, Article 4(1) Directive 2000/78) ................................................. 53 
4.2  Employers  with  an  ethos  based  on  religion  or  belief  (Article  4(2) 
Directive 2000/78) ................................................................................ 53 
4.3  Armed forces and other specific occupations (Article 3(4) and Recitals 18 and 
19, Directive 2000/78) .......................................................................... 54 
4.4  Nationality discrimination (Article 3(2)) ................................................... 55 
4.5  Health and safety at work (Article 7(2) Directive 2000/78) ........................ 56 
4.6  Exceptions  related  to  discrimination  on  the  grounds  of  age  (Article  6 
Directive 2000/78) ................................................................................ 57 
4.6.1  Direct discrimination ................................................................. 57 
4.6.2 
Special conditions for younger or older workers ............................ 58 
4.6.3  Minimum and maximum age requirements ................................... 59 

3.2.6 
3.2.7 
3.2.8 

3.2.5 

3.2.3 

4 

3 

 
Country report - Non-discrimination – Portugal – 2023 

7 

5 

6 

4.6.4  Retirement ............................................................................... 60 
4.6.5  Redundancy ............................................................................. 62 
4.7  Further  exception  necessary  in  a  democratic  society:  Public  security,  public 
order,  criminal  offences,  protection  of  health,  protection  of  the  rights  and 
freedoms of others (Article 2(5), Directive 2000/78) ................................. 62 
4.8  Any other exceptions ............................................................................. 63 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
 ................................................................................................................. 64 
REMEDIES AND ENFORCEMENT ................................................................. 68 
6.1 
Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) ............................................................................. 68 
6.2  Legal  standing  and  associations  (Article  7(2)  Directive  2000/43,  Article  9(2) 
Directive 2000/78) ................................................................................ 72 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78).. 77 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) ...... 78 
6.5  Sanctions  and 
remedies  (Article  15  Directive  2000/43,  Article  17 
Directive 2000/78) ................................................................................ 79 
BODY  FOR  THE  PROMOTION  OF  EQUAL  TREATMENT  (Article  13  Directive 
2000/43) .................................................................................................. 83 
7.1  Body  designated  for  the  promotion  of  equal  treatment  irrespective  of 
racial/ethnic origin according to Article 13 of the Racial Equality Directive .... 83 
7.2  Political, economic and social context of the designated body ..................... 85 
7.3 
Institutional architecture ........................................................................ 85 
7.4  Status of the designated body – general independence .............................. 86 
7.5  Grounds covered by the designated body ................................................. 88 
7.6  Competencies of the designated body – and their independent exercise ...... 89 
7.7  Legal standing of the designated body ..................................................... 91 
7.8  Dispute resolution ................................................................................. 91 
7.9  Procedural safeguards ........................................................................... 92 
7.10  Data collection by the designated body .................................................... 92 
7.11  Roma and Travellers ............................................................................. 93 
IMPLEMENTATION ISSUES........................................................................ 95 
8.1  Dissemination of information, dialogue with NGOs and between social partners
 .......................................................................................................... 95 
8.2  Measures to ensure compliance with the principle of equal treatment (Article 14 
Directive 2000/43, Article 16 Directive 2000/78) ...................................... 96 
9 
COORDINATION AT NATIONAL LEVEL ....................................................... 98 
10  CURRENT BEST PRACTICES ..................................................................... 101 
11  SENSITIVE OR CONTROVERSIAL ISSUES ................................................ 102 
11.1  Potential breaches of the directives at the national level .......................... 102 
11.2  Other issues of concern ....................................................................... 102 
12  LATEST DEVELOPMENTS IN 2022 ............................................................ 104 
12.1  Legislative amendments ...................................................................... 104 
12.2  Case law ............................................................................................ 104 
ANNEX 1: TABLE OF INTERNATIONAL INSTRUMENTS ..................................... 106 

8 

4 

Country report - Non-discrimination – Portugal – 2023 

EXECUTIVE SUMMARY 

1. Introduction 

Portugal  has  a  long  tradition  of  contact  with  other  cultures  and  peoples.  Due  to  the 
experience of Portuguese  emigration to  Brazil  (from the 16th to the  early 19th century, 
Brazil was a colony and a part of the Portuguese Empire) and Latin America in general, as 
well  as  to  other  countries  in  Europe  such  as  France  and  Germany  in  the  1960s,  the 
Portuguese are used to tolerating difference,1 at least in terms of ethnic diversity, race and 
religion. 

Immigration movements to Portugal have played a role in Portuguese demographics for a 
long time. In 2021, according to the final result of the Census there were 542 165 foreign 
citizens  (both  EU  and  non-EU  nationals),  representing  5.2 %  of  the  total  Portuguese 
population,  of  whom  82.4 %  are  non-EU  nationals.2  However,  for  the  same  year,  other 
data showed that the total of foreign legal residents was 698 536.3 In 2022, according to 
provisional  data  of  the  Foreigners  and  Borders  Service,  that  number  has  increased  to 
757 252.4 

In Portugal, racist or fascist political parties are forbidden.5 However, since the end of 2019 
there was a representative of an extreme right-wing party – CHEGA – in Parliament. In the 
legislative elections, held on January 2022, the party increased its share of the vote and 
became the third largest party in Parliament, winning 12 seats. 

No conflicts have been reported between religious groups. However, as the majority of the 
population  is  Catholic,6  other  religions  face  greater  problems  in  practice,  for  example  in 
ministering to people in hospitals and prisons. In addition, meals in public schools are still 
not completely adapted to meet the needs of other religions, in particular those of Islam.7 
Notwithstanding these factors, religious diversity remains a fairly non-controversial topic. 
In terms  of discrimination on the basis  of ethnic origin, Portugal is undergoing alarming 

1   According to the OECD Social Cohesion Indicators on Tolerance, Portugal is positioned above the OECD 

average. See OECD (2014), ‘Tolerance’, in Society at a Glance 2014: OECD Social Indicators, available at: 
https://doi.org/10.1787/soc_glance-2014-28-en. Also the MIPAX – Migrant Integration Policy Index of 2020 
shows that Portugal ranked third in terms of most favourable migrant integration policies 
(https://www.mipex.eu/portugal). In 2022 Portugal published a report of the National Implementation Plan 
of the Global Compact for Migration, a document that takes stock of the progress made since 2020, 
including some relevant achievements 
(https://www.acm.gov.pt/documents/10181/27754/Relatório+Nacional+Voluntário+IMRF+2022.pdf/f0bba7
3c-ee90-4098-97f7-728e5f41a082). However, in the study from Alice Ramos and Pedro C. Magalhães, ‘Os 
Valores dos Portugueses – Resultados do European Values Study’, Gulbenkian Studies, #1, 2021, it is 
shown that Roma are considered (along with drug-addicts and alcoholics) as a group that is not welcomed 
as neighbours (e-book available at: https://gulbenkian.pt/publication/os-valores-dos-portugueses/). 
2   See Instituto Nacional de Estatística – Censos 2021. O que nos dizem os Censos sobre a população de 

nacionalidade estrangeira residente em Portugal. Lisboa : INE, 2022. Available at: 
https://www.ine.pt/xurl/pub/66196836. 

3   See: 

https://www.pordata.pt/Portugal/População+estrangeira+com+estatuto+legal+de+residente+total+e+por
+algumas+nacionalidades-24; https://sefstat.sef.pt/forms/distritos.aspx. 

4   https://folhanacional.pt/2023/01/16/estrangeiros-em-portugal-aumentaram-em-2022-pelo-setimo-ano-

consecutivo-e-sao-mais-de-750-mil/. 

5   Portuguese Constitution, Article 46(4); Organic Law 2/2003, on political parties, 22 August 2003 (last 

amended by Organic Law 1/2018, 19 April 2018), Article 8, available at: 
https://www.parlamento.pt/Legislacao/Documents/Legislacao_Anotada/LeiPartidosPoliticos_Anotado.pdf. 

6   According to the results of the Census 2021, in the last decade, the number of Catholics in Portugal fell by 
8.1 %, from 88.3 % in 2011 to 80.2 % in 2021. The Census also indicates that there are 6.6 % more 
people without religion. It is important to say that the question regarding religion in the census was of an 
optional nature, but obtained a response rate of 97 % 
(https://rr.sapo.pt/noticia/religiao/2022/11/24/censos-2021-portugal-tem-menos-catolicos-e-mais-pessoas-
sem-religiao/309270/). 

7   Since education has become mainly a municipal competence, some municipalities with a relevant immigrant 

community such as Odivelas have started to introduce halal meals in school canteens (See: 
https://odivelashoje.pt/2022/02/24/municipio-de-odivelas-pioneiro-na-entrega-de-refeicoes-halal-nas-
escolas/). 

5 

 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

changes  that  have  been  followed  by  a  prompt  reaction  from  the  courts  and  public 
authorities. Some judicial actions have been drawing attention to structural discrimination 
and  stereotyping  regarding  ethnic  and  racial  origin  as  reported  in  the  previous  Country 
Report.8  In  2022,  there  have  also  been  judicial  developments,  with  the  decision  taken 
against several persons suspected of being part of the Portuguese Hammerskins (a neo-
Nazi skinhead group). In this case, 21 of the defendants were convicted of racial, sexual 
orientation  and  religious  discrimination  and  sentenced  to  imprisonment.  Custodial 
sentences ranged from six months to nine years.9 

Portuguese society is not yet fully aware of the issues involved in the relatively new field 
of age discrimination and is only slowly becoming aware of their implications. However, 
individuals are beginning to invoke age discrimination and seniority before the courts10 and 
before  equality  bodies,11  emphasising  the  need  for  seniority  of  older  people  to  be 
considered in order to fully respect the principle of equality. 

According to the 2021 Census results, 10.9 % of the resident population aged five or over 
has at least one disability; this condition mainly affects women, obtaining a female ratio of 
164  women  with  a  disability  for  every  100  men  with  a  disability;  and  the  prevalence  of 
disability  increases  with  advancing  age,  progressively,  especially  from  70-74  years 
onwards.12 

2. Main legislation 

The  Portuguese  Constitution13  includes  a  specific  general  clause  on  the  principle  of 
equality.14  Article  13(1)  states  that  ‘all  citizens  possess  the  same  social  dignity  and  are 
equal  before  the  law’,  and  Article  13(2)  establishes  a  general  anti-discrimination  clause 
under which: 

‘No one may be privileged, favoured, prejudiced, deprived of any right or exempted 
from  any  duty  for  reasons  of  ancestry,  sex,  race,  language,  territory  of  origin, 
religion,  political  or  ideological  beliefs,  education,  economic  situation,  social 
circumstances or sexual orientation.’ 

This  enumeration  is  not  exhaustive,  and  other  grounds  such  as  age  and  disability  are 
protected,  as  will  be  seen  in  section  1  of  this  report.  The  Constitution  develops  these 
principles in its chapters on workers’ rights, freedoms and guarantees and on economic, 
social and cultural rights. 

8   Available at: https://www.equalitylaw.eu/downloads/5739-portugal-country-report-non-discrimination-

2022-1-36-mb. 

9   Criminal Court of Lisbon, judgment of 27 June 2022, proc. 953/15.4PELSB. See Flash Report of 1 August 
2022, available at: https://www.equalitylaw.eu/downloads/5667-portugal-criminal-convictions-for-racial-
discrimination-128-kb.  

10   See Court of Appeal of Porto, judgment of 3 November 2014, No. 1013/12.5TTMTS.P1, available at: 

www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/54ec528e2080002980257d8f004e3510?OpenDo
cument&Highlight=0,discrimina%C3%A7%C3%A3o,em,fun%C3%A7%C3%A3o,da,idade; and Court of 
Appeal of Coimbra of 13 December 2022, available at: 
http://www.dgsi.pt/jtrc.nsf/c3fb530030ea1c61802568d9005cd5bb/8df24973dad568788025893500501908?
OpenDocument. 

11   The Portuguese Ombudsman has undertaken some activities in respect of age discrimination even beyond 

the labour sphere. See Catarina Ventura (Assessora do Provedor de Justiça) (2017), ‘O Provedor de Justiça 
e os desafios da inclusão no ensino superior’, available at: https://www.provedor-
jus.pt/documentos/12_10_2017_PJus_Inclusao_ESup_CatarinaSampaioVentura.pdf. 

12   Report ‘Censos – O que nos dizem os Censos sobre as dificuldades sentidas pelas pessoas com 

incapacidades’ – 2021, Edition 2022, available at: 
https://www.ine.pt/xportal/xmain?xpid=INE&xpgid=ine_publicacoes&PUBLICACOESpub_boui=66200373&P
UBLICACOESmodo=2. 

13   An English version of the Constitution can be consulted on the website of the Portuguese Parliament, 

available at: www.parlamento.pt. 
14   Portuguese Constitution, Article 13. 

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Country report - Non-discrimination – Portugal – 2023 

Furthermore, Portugal has ratified several international human rights treaties such as the 
European Convention on Human Rights (ECHR); Protocol 12 of the ECHR; the International 
Convention on the Elimination of All Forms of Racial Discrimination; the revised European 
Social Charter; the UN Convention on the Elimination of All Forms of Discrimination against 
Women;  the  International  Covenant  on  Civil  and  Political  Rights  and  the  International 
Covenant on Economic, Social and Cultural Rights, including the optional protocols on the 
right  to  individual  and  collective  complaints;  the  International  Labour  Organisation 
Convention 111 on Discrimination; and the UN Convention on the Rights of Persons with 
Disabilities. 

With regard to domestic legislation, the general statute related to non-discrimination issues 
is Law 93/2017 of 23 August 2017,15 which establishes the legal regime for the prevention, 
prohibition  and  combating  of  discrimination  on  the  grounds  of  race  or  ethnic  origin, 
nationality, ancestry and territory of origin within the scope of social protection, including 
in social  security and  healthcare,  social benefits,  education, access to  and the supply of 
goods and services that are available to the public, including housing and culture. 

Law 38/2004 defines the general legal basis for the prevention of the causes of disability, 
and  the  training,  rehabilitation  and  participation  of  persons  with  disabilities.16 
Law 46/200617  prohibits  and  punishes  discrimination  based  on  disability  and  on  a  pre-
existing risk to health (risco agravado para a saúde). 

With regard to employment, Law 7/2009 of 12 February 2009,18 which approves the Labour 
Code, transposes, among many other directives, Directive 2000/43/EC (the Racial Equality 
Directive) and Directive 2000/78/EC (the Employment Equality Directive).  

Article 24 of the Labour Code prohibits discrimination on the grounds of ancestry, age, sex, 
sexual  orientation,  gender  identity,  civil  status,  family  situation,  economic  situation, 
education, origin or social condition, genetic heritage, reduced capacity for work, disability, 
chronic  illness,  nationality,  ethnic  origin  or  race,  territory  of  origin,  language,  religion, 
political or ideological convictions and trade union affiliation. 

Law  3/2011,  which  forbids  any  discrimination  in  access  to  and  the  exercise  of  self-
employment,  and  transposes  into  national  law  Directives  2000/43/EC,  2000/78/EC  and 
2006/54/EC,  has  clarified  aspects  of  anti-discrimination  legislation  concerning  self-
employment  and  the  rights  of  associations  to  intervene  in  labour,  administrative  and 
judicial  procedures,  and  it  changes  the  legal  standing  of  NGOs  and  organisations  that 
defend people against discrimination.19 

Article 240 of the Criminal Code20 covers discrimination based on  race, colour, ethnic or 
national origin, ancestry, religion, gender, sexual orientation, gender identity and physical 
or mental disability. 

To  sum up, the anti-discrimination directives are transposed  by legislation adopted  with 
the specific purpose of transposition. Beyond this legislation, discrimination is prohibited 
in various other statutes, as well as in codes such as the Labour and the Criminal Codes. 

15   Law 93/2017, 23 August 2017, available at: https://dre.pt/application/conteudo/108038372. 
16   Law 38/2004, 18 August 2004, available at: http://dre.pt/pdf1s/2004/08/194A00/52325236.pdf. 
17   Law 46/2006, 28 August 2006, available at: 

https://dre.pt/application/dir/pdf1sdip/2006/08/16500/62106213.pdf. 

18   Law 7/2009, 12 February 2009, available at: 

https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1047&tabela=leis. 

19   Law 3/2011, 20 February 2011, available at: 

https://dre.pt/application/dir/pdf1s/2011/02/03200/0080900811.pdf. 

20   Criminal Code, approved by Decree-Law 48/95, available at: 

www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=109&tabela=leis. 

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Country report - Non-discrimination – Portugal – 2023 

3. Main principles and definitions 

The  principle  of  equality  and  non-discrimination  is  a  main  principle  of  every  state  that 
upholds democracy and the rule of law; thus it  applies in Portugal.  National law defines 
several operational concepts of anti-discrimination law in order to facilitate their application 
by judicial and administrative bodies. 

Direct  discrimination  is  prohibited  and  defined  in  national  law.  The  definitions  of  direct 
discrimination in Portuguese law comply with those in the directives. 

Article 3(1)(b) of Law 93/2017; Article 3(a) and Article 4 of Law 46/2006; Article 23(1)(a) 
of the Labour Code; and Article 5(2)(a) of Law 3/2011 are the main provisions that define 
direct discrimination.  

Indirect  discrimination  is  also  prohibited  and  defined  in  national  law.  The  definition  of 
indirect discrimination in Portuguese law complies with those in the directives. 

Article  3(1)(c)  of  Law  93/2017;  Article  3(b)  of  Law  46/2006  of  28  August  2006; 
Article 23(1)(b)  of  the  Labour  Code;  and  Article  5(2)(b)  of  Law  3/2011  are  the  main 
provisions that define indirect discrimination.  

Since 2017, Law 93/2017 also prohibits discrimination based on association with persons 
with particular characteristics (e.g. association with persons of a particular ethnic group, 
race, nationality, ancestry or territory origin). According to Article 3(d) of Law 93/2017, 
discrimination by association occurs as a result of a relationship and/or association with a 
person or group of persons who holds a protected characteristic.21 

Harassment  is  defined  and  prohibited  by  the  Criminal  Code,  the  Labour  Code,  and 
Law 3/2011. More recently, Law 93/201722 defines harassment as any form of unwanted 
conduct related to racial or ethnic origin with the purpose or effect of violating the dignity 
of  a  person  or  a  group  of  persons  and  of  creating  an  intimidating,  hostile,  degrading, 
humiliating or offensive environment.  

Instructions  or  orders  to  discriminate  are  dealt  with  as  discrimination  (Article  3(3)  of 
Law 93/2017 and Article 5(1) of Law 46/2006). 

In  Portugal,  multiple  discrimination  is  prohibited  in  Law  93/2017  (Article  3(1)(e)  and 
Article 4(1)). According to these provisions, multiple discrimination is discrimination that 
results  from  a  combination  of  two  or  more  discriminatory  factors.  In  this  case,  the  law 
adds, an objective justification of the behaviour must exist in relation to all those factors. 

Portuguese  law  does  not  define  racial  discrimination,  which  is  probably  due  to  the 
inherently controversial nature of the concept of race.  

In contrast, Law 38/2004 defines disability with particular care. A person with disabilities 
is defined as:  

‘someone  who,  because  of  loss  or  irregularity,  whether  congenital  or  acquired,  of 
bodily  functions  or  structures,  including  psychological  functions,  has  specific 
difficulties that are likely, in combination with environmental factors, to limit or hinder 
their activity and participation on equal terms with others’.23  

21   Law 93/2017, 23 August 2017, Articles 3(1)(d) and 4(1). 
22   Law 93/2017, 23 August 2017, Article 3(1)(f). 
23   Law 38/2004, 18 August 2004, Article 2. 

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Country report - Non-discrimination – Portugal – 2023 

The  definition  of  ‘disability’  in  Portugal,  however,  goes  beyond  that  strict  concept  of 
disability, as it also includes those with a pre-existing aggravated risk to their health (risco 
agravado para a saúde).24 

The duty of employers to provide reasonable accommodation for persons with disabilities 
is included in the law, but is not defined. According to Article 86(2) of the Labour Code, 
the employer has an obligation to grant reasonable accommodation, if it does not require 
disproportionate expense. 

4. Material scope 

Anti-discrimination  provisions  cover  all  the  fields  listed  in  the  directives,  namely 
employment,  social  protection,  social  advantages,  education,  goods  and  services  and 
housing.  Discrimination  on  the  grounds  of  racial  or  ethnic  origin,  nationality,  religion  or 
belief,  age,  disability  and  sexual  orientation  are  also  prohibited  in  employment  and 
vocational training, including in prisons.  Discrimination on the grounds of race or  ethnic 
origin, colour, ancestry and nationality are also prohibited in relation to the exercise of any 
civil  rights,  liberties  or  social  or  cultural  rights.  With  regard  to  employment,  anti-
discrimination provisions apply to both the public and private sectors. 

5. Enforcing the law 

The most important Government agencies which enforce anti-discrimination law are: 

- 

- 

The High Commission for Migration (HCM) (Alto Comissariado para as Migrações – 
ACM),  assisted  by  CEARD,  the  Commission  for  Equality  and  Against  Racial 
Discrimination.  The  mission  of  the  HCM  is  to  collaborate  in  the  mainstreaming  of 
equal  treatment  based  on  racial  or  ethnic  origin  throughout  the  creation, 
implementation  and  evaluation  of  sectoral,  cross-cutting  and  public  policies 
concerned  with  the  integration  of  immigrants  and  ethnic  minorities,  as  well  as  to 
promote  dialogue  between  the  various  cultures,  ethnic  groups  and  religions.  This 
body is also responsible for instructing the administrative procedures for infractions 
of the non-discrimination provisions in Law 93/2017. 

The Authority for Working Conditions (Autoridade para as Condições do Trabalho – 
ACT)  is  responsible  for  promoting  improved  working  conditions  by  ensuring 
compliance with labour  regulations. Its work in  enforcing anti-discrimination law is 
very important. However, this body has competence only in employment.  

Victims of discrimination may address their complaints to any police authority, CEARD or 
ACT.  In  the  case  of  a  crime,  the  Public  Prosecution  Service  will  conduct  the  case  in  the 
criminal courts. 

Associations  are  entitled  to  act  on  behalf  of  victims  of  discrimination.  According  to 
Article 12(1) of Law 93/2017, associations with the objective of combating discrimination 
based  on  the  grounds  of  race/ethnic  origin,  nationality,  ancestry  and  territory  of  origin 
have the right to engage in judicial procedures on behalf of the interested persons, with 
their  consent.  Trade  unions  and  associations  are  entitled  under  national  law  (Labour 
Procedure Code) to act on behalf or in support of victims of discrimination. NGOPDs (Non-
Governmental  Organisations  for  Persons  with  Disability)  are  entitled  to  act  on  behalf  of 
victims  of  discrimination  according  to  Article  5(2)  of  Decree-Law  106/2013  of  30  July 
2013,25 which defines their statutory basis. Law 46/2006 also provides, in Article 15(1), 
that NGOPDs and all organisations that defend and promote the interests of persons with 
disabilities have the right to intervene in support of the interested party. The Basic Law on 
Housing explicitly refers to the right to public and popular action with regard to the level 

24   Law 46/2006, 28 August 2006, Article 1. 
25   Decree-Law 106/2013, 30 July 2013, available at: https://dre.pt/home/-/dre/498708/details/maximized. 

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Country report - Non-discrimination – Portugal – 2023 

of conservation of the dwelling and the habitat it is inserted into; Article 60(2)(a) of Law 
83/2019. It is worth mentioning that Article 23 of Law 107/2009 of 14 September,26 which 
approves the procedural rules for administrative offences in the areas of labour and social 
security, also grants trade unions legal standing to intervene in administrative proceedings 
in support of a worker. 

With regard to proof of discrimination,  once  some  elements of proof  of the existence  of 
discrimination have been established, the burden of proof will shift,  and the respondent 
has a duty to prove that the facts alleged are not discriminatory. This principle does not 
apply  to  criminal  procedures  or  to  actions  in  which,  according  to  the  law,  it  is  the 
responsibility of a court or other jurisdiction to carry out the investigation. In practice, this 
principle has raised some difficulties in the courts. 

Statistics, if available, can be used as  evidence. They are considered as documents and 
can be subject to analysis by experts appointed by the parties or by the court. It is the 
responsibility of the court to evaluate the evidence resulting from the statistics. However, 
this is not widespread. There have been no cases in Portugal involving direct or indirect 
discrimination in which statistics have played a major role.27 The law is silent on the use 
of situation testing, and so far there has been no precedent for its use in Portugal. 

There  is  a  specific  programme  that  address  the  needs  of  Roma  people  (National  Roma 
Communities Integration Strategy) and there is a specific section in the Portugal + Equal 
– National Strategy for Equality and Non-Discrimination 2018-2030 for LGBTIQ people.28 

6. Equality bodies 

The specialised body for the promotion of equal treatment with regard to racial and ethnic 
discrimination is the High Commission for Migration (HCM), formerly the High Commission 
for Immigration and Intercultural Dialogue (Alto Comissariado para a Imigração e Diálogo 
Intercultural – ACIDI),29 created by Decree-Law 31/2014.30 The HCM is responsible for the 
promotion of equality of treatment for everyone, without any discrimination on the grounds 
of racial or ethnic origin, and  for the promotion of dialogue with, and the integration of, 
immigrants, ethnic minorities and religions in the country. The HCM is assisted by CEARD, 
the Commission for Equality and Against Racial Discrimination, an organ within the HCM 
but  which  has  its  own  competencies  under  law  and  which  is  responsible  for  supervising 
adherence to Law 93/2017. 

The mandate of the HCM seems to be broader than that of CEARD, since Article 3 of Decree-
Law 31/2014 refers also to religion, a criterion that is absent from Law 93/2017. 

26   Law 107/2009, 14 September, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1154&tabela=leis.  

27   For probatory difficulties in Portugal, see de Carvalho, P.M, ‘Ónus da prova em caso de discriminação’, 

Direito e Justiça, Vol. Especial, No. 3 (2015), pp. 109-136, available at: 
https://revistas.ucp.pt/index.php/direitoejustica/article/view/9959/9679. 

28   In May 2022, the Commission for Citizenship and Gender Equality (CIG) has published a study entitled 

‘National study on the needs of LGBTI people and on discrimination based on sexual orientation, gender 
identity and expression and sexual characteristics’ (available at: https://www.cig.gov.pt/wp-
content/uploads/2022/05/Estudo_necessidades_pessoas_LGBTI_discrimina_orienta_sexual_id_express_gen
ero_caractrstcs_sexuais.pdf).  

29   The High Commission for Immigration and Intercultural Dialogue was regulated by Decree-Law 167/2007, 

3 May 2007. 

30   Decree-Law 31/2014, 27 February 2014, repealing Decree-Law 167/2007 of 3 May 2007 and replacing the 
High Commission for Immigration and Intercultural Dialogue with the High Commission for Migration, 
available at: https://dre.pt/application/file/572214. 

10 

 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Indeed, according to Decree-Law 31/2014, its mission and attributions are the following:  

‘collaborate  in  the  definition,  execution  and  evaluation  of  public,  transversal  and 
sectorial policies regarding migration, relevant for the attraction of migrants in the 
national,  international  and  Portuguese-speaking  contexts,  for  the  integration  of 
immigrants  and  ethnic  groups,  in  particular  the  Roma  communities,  and  for  the 
management and valorisation of diversity among cultures, ethnicities and religions’ 
(Article 3). 

CEARD promotes equality and non-discrimination on the grounds of race or ethnic origin, 
nationality, ancestry and territory of origin (Articles 1 and 8(1) of Law 93/2017), covering 
all the areas that fall under the scope of the Racial Equality Directive and work at national 
level  and  has  more  executive  competencies,  such  as  collecting  information,  performing 
studies  and  drawing  statistics  regarding  discriminatory  practices,  recommending  the 
adoption of legislative, regulatory and administrative measures, conducting administrative 
fines  proceedings  and  preparing  an  annual  report  on  the  situation  of  equality  and  non-
discrimination on the basis of the factors mentioned above. 

The  Commission  for  Citizenship  and  Gender  Equality  (Comissão  para  a  Cidadania  e  a 
Igualdade de Género – CIG) was established by Decree-Law 164/2007 of 3 May 2007 and 
is now governed by Regulatory Decree 1/2012 of 6 January.31 Its mandate is to ensure the 
implementation of public policies in the area of citizenship and the promotion and defence 
of gender equality (Article 2 of Decree-Law 164/2007), and covers the following grounds 
of discrimination: gender, gender identity and sexual orientation. 

The National Institute for Rehabilitation (Instituto Nacional para a Reabilitação – INR) is, 
according  to  Law  46/2006  (Article  8(1)),  the  governmental  office  within  the  Ministry  of 
Solidarity, Employment and Social Security responsible for policies and promotion of rights 
of  persons  with  disabilities.  Its  mission  is  to  ensure  the  planning,  execution  and 
coordination of national policies aimed at promoting the rights of persons with disabilities, 
and it also receives individual complaints and issues non-binding opinions on enquiries and 
disciplinary  procedures  within  the  public  administration.  Within  Decree-Law  125/2017, 
physical accessibility of buildings was also included in the INR scope of competencies and 
a  commission  for  the  promotion  of  accessibility  was  created  to  report  on  the  status  of 
accessibility in Portugal.32 

The Portuguese Ombudsman, in its capacity of national human rights institution, fully in 
line with the Paris Principles, receives complaints of alleged violence and discrimination. It 
has  established  a  telephone  contact  line  for  persons  with  disabilities,  children  and  older 
persons. 

Each  of  these  bodies  has  its  own  mandate;  however,  cooperation  mechanisms  are 
established, mainly in regard to reporting. This might raise some difficulties in the appraisal 
of intersectional discrimination given the multiplication of different actors. However, HCM 
is generally the institution most fitted to file those claims. 

7. Key issues 

The  most  important  point  to  highlight  is  that  Portuguese  legislation  and  practice  is, 
generally speaking, in accordance with the directives. There have not been many reports 
of cases of discrimination on the grounds of religion, disability or sexual orientation. This 
does  not  mean,  however,  that  the  reported  cases  are  always  in  line  with  practices  and 
individual experiences were highlighted in the ‘Eurobarometer on Discrimination 2019: The 

31   Regulatory Decree 1/2012, 6 January, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1604&tabela=leis.  

32   The first report of 2020 is available at: https://www.inr.pt/documents/11309/285392/Relatorio+FINAL+-

+ComissaoPromocaoAcessibilidades.pdf/0800afb7-8e09-44eb-9110-44e9082678e1. 

11 

 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

social acceptance  of  LGBTI people in the EU’ publication, which showed that  wide social 
acceptance of LGBTQI people is still lacking in Portugal.33 

The numbers of race or ethnic origin cases – at least those cases publicised in the media 
– are, however, increasing. 

In Portugal, it is common to approve legislation that is appropriate to achieve the required 
goals, yet which, due to several factors – such as the weakness of the economic situation, 
and the burden on the public administration – does not function effectively and efficiently, 
which applies also to the implementation of anti-discrimination law. 

Furthermore, in Portugal, the culture of taking judicial action in courts, either judicial or 
administrative,  against  discriminatory  practices  is  lacking.  There  are  therefore  very  few 
judicial  decisions  on  such  issues.  There  are  three  main  reasons  for  this.  Firstly,  for  all 
judicial procedures, victims have to instruct a lawyer and advance some funds. Secondly, 
the  length,  complexity  and  difficulty  of  obtaining  evidence  may  act  as  a  disincentive  to 
victims  seeking  redress.  Thirdly,  the  involvement  of  NGOs  and  other  forms  of  collective 
redress are not yet common practice in the Portuguese judicial system. 

Administrative complaints to administrative authorities are more frequent. As they usually 
achieve the victim’s objective of ending the discrimination and/or being compensated for 
damages, they are often considered to provide a sufficient remedy and without being too 
costly. 

In  the  202134  report  of  CEARD  on  Equality  and  Non-Discrimination  regarding  racial  and 
ethnic  origin,  colour,  nationality,  ancestry  and  territory  of  origin,  408  complaints  were 
received by CEARD, representing a decrease of around 37.7 % compared with 2020, when 
there were 655 complaints.35 Regarding the grounds of discrimination, the most identified 
factor of discrimination was nationality (39.2 %), followed by ‘skin colour’ (17.2 %), and 
race  and  ethnic  origin  (16.9 %).  Regarding  discrimination  on  the  grounds  of  disability, 
during 2021, the National Institute for Rehabilitation (INR) registered in its annual report 
1 195 complaints on the grounds of disability or aggravated health risk, which represents 
an  increase  compared  with  the  previous  year  (1 023)36.  The  subject  with  the  highest 
incidence  of  complaints  was  related  to  access  to  health  (39.6  %,  n=453),  much  higher 
than that registered in 2020 (n = 142, 14.1 %).  

In this context, the main problematic point in the transposition of the directives concerns 
the lack of independence of the equality bodies. Except for the Portuguese Ombudsman, 
they  are  either  departments  or  services  of  the  Government  or  depend  on  it,  and  they 
therefore lack the necessary legal independence to carry out their missions with full liberty. 
Moreover, some of these bodies continue to be virtually unknown to the general public. 

33   European Commission, ‘Eurobarometer on Discrimination 2019: The social acceptance of LGBTI people in 

the EU’, 23 September 2019, available at: 
https://ec.europa.eu/info/sites/default/files/ebs_493_data_fact_lgbti_eu_en-1.pdf. 

34   Information for 2022 is not available because the report is not yet published. 
35   Report available at: https://www.cicdr.pt/documents/57891/574449/20220809+-

+Relat%C3%B3rio+Anual+CICDR+2021_.pdf/a7777160-f69a-48dd-8156-80d6bfcc93d0. No report for 
2022 has yet been adopted. 

36   Report available at: https://www.inr.pt/documents/11309/380827/Relat%C3%B3rio+-

+Lei+da+N%C3%A3o+Discrimina%C3%A7%C3%A3o+2021/e41123fb-5c78-463a-88bc-523ba7577df5. No 
report for 2022 has been yet adopted. 

12 

 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

INTRODUCTION 

The national legal system 

According to Article 1 of the Constitution of the Portuguese Republic of 1976, ‘Portugal is 
a sovereign Republic, based on the dignity of the human person and the will of the people 
and committed to building a free, just and solidary society.’ That means that the  human 
being is the first priority of the state, above the economic and political organisation of the 
state. 

According to Article 2 of the Constitution: 

‘The  Portuguese  Republic  is  a  democratic  state  based  on  the  rule  of  law,  the 
sovereignty  of  the  people,  plural  democratic  expression  and  political  organisation, 
respect  for  and  the  guarantee  of  the  effective  implementation  of  the  fundamental 
rights and freedoms, and the separation and interdependence of powers, with a view 
to  achieving  economic,  social  and  cultural  democracy  and  deepening  participatory 
democracy.’ 

The  structure  of  the  state  is  unitary  with  autonomous  regions  (Article  6(2))  and  must 
respect the autonomous island system of self-government, the principles of subsidiarity, 
the  autonomy  of  local  authorities  and  the  democratic  decentralisation  of  the  public 
administration (Article 6(1)). The political system is founded on the separation of effective 
powers (positive and negative) between the President, Parliament and Government, all of 
which possess identical democratic legitimacy. 

The  President  of  the  Republic  exercises  effective  positive  and  negative  political  powers, 
such  as  the  appointment  of  the  prime  minister,  the  right  of  veto,  the  removal  of  the 
Government and the dissolution of the Assembly. 

The Assembly of the Republic (Parliament) exercises legislative and political control powers 
(Article 149(1) of the Constitution). The Assembly of the Republic has exclusive legislative 
powers on some matters, and partially exclusive legislative powers on others. For instance, 
it has exclusive legislative powers with regard to rights, freedoms and guarantees, except 
where legislative power is delegated to the Government. 

The Government conducts the country’s general policy and is the supreme authority in the 
public administration (Article 182 of the Constitution). It also enjoys legislative powers on 
matters that are not within the exclusive mandate of the Assembly of the Republic, and on 
matters  that  are  within  the  exclusive  power  of  the  Assembly  but  which  the  Assembly 
delegates to it. 

Jurisdictional  function  is  assured  by  the  courts,  which  exercise  sovereignty  with  the 
competence  to  administer  justice  in  the  name  of  the  people  (Article  202  of  the 
Constitution). The control of what is constitutional and legal is multifaceted, and all courts 
(including the Constitutional Court) must not apply rules that contravene the provisions of 
the Constitution or the principles enshrined therein (Article 204 of the Constitution). 

The  Portuguese  Constitution  also  provides  for  an  independent  mediator  body  –  the 
Ombudsman – to whom citizens may present complaints about actions, or the inaction, of 
public  powers.  The  Ombudsman  has  no  decision-making  powers  but  may  issue 
recommendations  to  the  competent  entities  in  order  to  prevent  or  repair  any  injustice 
(Article 23). 

Pursuant  to  Article  267(3)  of  the  Portuguese  Constitution,  independent  administrative 
authorities may be created; however, this has not been the case with equality bodies in 

13 

 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Portugal, since they are either departments or services of the Government or depend on 
it, and are therefore not independent of the Government. 

List of main legislation transposing and implementing the directives 

Official title of the law: Law 93/2017 
Abbreviation: N/A 
Date of adoption: 23 August 2017 
Entry into force: 1 September 2017 
Latest relevant amendment: N/A 
Web link: https://dre.pt/dre/detalhe/lei/93-2017-108038372?_ts=1666310400034 
Grounds covered: race/ethnic origin, nationality, ancestry and territory of origin. 
Civil/administrative law 
Material  scope:  Social  protection,  social  assistance,  education,  access  to  goods  and 
services, housing, health and culture. 
Principal  content:  prohibition  of  direct  and  indirect  discrimination,  harassment, 
instruction to discriminate, discrimination by association, and multiple discrimination and 
legal regime of administrative sanctions. 

Official title of the law: Law 38/2004 
Abbreviation: N/A 
Date of adoption: 18 August 2004 
Entry into force: 23 August 2004 
Latest relevant amendment: N/A 
Web link: https://dre.pt/dre/detalhe/lei/38-2004-480708 
Grounds covered: disability. 
Administrative law 
Material  scope:  general  legal  basis  for  prevention  of  the  causes  of  disability,  and  the 
training, rehabilitation and participation of persons with disabilities. 
Principal  content:  fundamental  principles,  intervention  of  public  and  private  entities; 
public policies. 

Official title of the law: Law 46/2006 
Abbreviation: N/A 
Date of adoption: 28 August 2006 
Entry  into  force:  29  August  2006,  except  the  provisions  that  have  budgetary 
implications. 
Latest relevant amendment: Law 75/2021, of 18 November 2021 
Web link: https://dre.pt/dre/detalhe/lei/46-2006-540797 
Grounds covered: disability. 
Civil/administrative/criminal law 
Material  scope:  employment,  social  protection,  social  assistance,  education,  access  to 
goods and services, housing, health and culture. 
Principal  content:  prohibition  of  direct  and  indirect  discrimination,  harassment, 
instruction to discriminate, discrimination in employment, sanctions. 

Official title of the law: Law 7/2009 
Name used in this report: Labour Code 
Abbreviation: N/A 
Date of adoption: 12 February 2009 
Entry into force: 1 May 2009 
Latest relevant amendment: Law 1/2002, of 3 January 2022 
Web link: https://dre.pt/dre/legislacao-consolidada/lei/2009-34546475 

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Country report - Non-discrimination – Portugal – 2023 

Grounds  covered:  ancestry,  age,  sex,  sexual  orientation,  gender  identity,  civil  status, 
family  situation,37  economic  situation,  education,  origin  or  social  condition,  genetic 
heritage, reduced capacity for work, disability, chronic illness, nationality, ethnic origin 
or race, territory of origin, language, religion, political or ideological convictions and trade 
union affiliation. 
Labour law 
Material scope: private employment; public employment. 
Principal  content:  prohibition  of  direct  and  indirect  discrimination,  harassment, 
instruction to discriminate. 

Official title of the law: Law 3/2011 
Abbreviation: N/A 
Date of adoption: 15 February 2011 
Entry into force: 20 February 2011 
Latest relevant amendment: N/A 
Web link: https://dre.pt/dre/detalhe/lei/3-2011-279786 
Grounds covered: any ground of discrimination. 
Civil/Labour/Procedural law 
Material scope: self-employment. 
Principal  content:  forbids  any  discrimination  in  access  to  and  exercise  of  self-
employment. 

37   Family situation refers typically to cases where discrimination arises from birth or marriage status but it also 

covers other discriminations related to family ties. It should be read in accordance with the last segment of 
Article 14 of the European Convention on Human Rights. 

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Country report - Non-discrimination – Portugal – 2023 

1  GENERAL LEGAL FRAMEWORK  

Constitutional provisions on protection against discrimination and the promotion 
of equality  

The  Constitution  of  Portugal  includes  the  following  general  provisions  dealing  with  non-
discrimination:  

- 

- 

- 

Article 13 is a general clause on the principle of equality. Paragraph 1 enshrines the 
principle of equal treatment before the law and paragraph 2 prohibits discrimination 
founded  on  a  large  and,  according  to  the  dominant  doctrine  in  Portugal,38  non-
exhaustive list of protected grounds (‘ancestry, gender, race, language, territory of 
origin,  religion, political or ideological beliefs,  education,  economic situation, social 
circumstances or sexual orientation’). 
Article  15  of  the  Constitution  establishes  a  principle  of  equivalence  of  rights  and 
duties between foreigners and stateless persons and Portuguese citizens. According 
to this provision, foreigners and stateless persons who are temporarily or habitually 
resident  in  Portugal  enjoy  the  same  rights  and  are  subject  to  the  same  duties  as 
Portuguese citizens. Exceptions to this general rule are political rights, the exercise 
of  public  functions  that  are  not  predominantly  technical  and  the  rights  and  duties 
which, according to the Constitution or the law, are restricted to Portuguese citizens. 
Article  26(1)  enshrines  the  right  to  legal  protection  against  any  form  of 
discrimination. The Constitution thereby guarantees legal remedies for violations of 
any forms of discrimination. 

In  addition  to  these  general  principles  and  provisions,  the  Constitution  includes,  in  the 
chapter on workers’ rights, freedoms and guarantees,  a prohibition on dismissal without 
fair cause or for political or ideological reasons (see Article 53 on job security). In Title III 
on economic, social and cultural rights and duties, Article 59(1) of the Constitution forbids 
discrimination  at  work  against  any  worker  on  grounds  such  as  age,  gender,  race, 
citizenship,  territory  of  origin,  religion,  or  political  or  ideological  convictions.  Paragraph 
(2)(a) of the same Article refers to the principle of equal pay for equal work. Article 59(2)(c) 
of the Constitution refers to special protection of the work done by minors,  persons with 
disabilities and those whose  occupations are particularly strenuous or are undertaken in 
unhealthy, toxic or dangerous conditions. 

Although Article 59(1) of the Constitution does not expressly refer to sexual orientation or 
to  disability,  it  must  be  interpreted  in  connection  with  Article  13,  which  forbids 
discrimination on a non-exhaustive list of grounds.39 This list can include the protection of 
other grounds, such as age and disability. 

In Title III, which concerns economic, social and cultural rights and duties, the Constitution 
includes  the  right  to  the  protection  of  health  (Article  64(2)(a)  and  (b)).  This  right  is 
universal. It is fulfilled by means of a universal and general national health service which, 
with  particular  regard  to  the  economic  and  social  conditions  of  the  citizens  who  use  it, 
tends  to  be  free  of  charge,  and  by  the  creation  of  economic,  social,  cultural  and 
environmental conditions that specifically guarantee the protection of childhood, youth and 
old  age.  The  Constitution  charges  the  state,  as  a  priority,  with  the  responsibility  of 
guaranteeing every  citizen, regardless of their economic situation, access to preventive, 
curative and rehabilitative medical care (Article 63(3)(a)). 

38   See: Gomes Canotilho, M. (2007), Constituição Da República Portuguesa Anotada, I (Artigo 1.º a 107.º), 

p. 340. 

39   Supreme Court of Justice, judgment of 11 December 2011, No. 343/04.4TTBCL.P1.S1, available at: 

http://www.dgsi.pt/JSTJ.NSF/954f0ce6ad9dd8b980256b5f003fa814/11aa12ab2447e05d80257935002d7e36
?OpenDocument. 

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Country report - Non-discrimination – Portugal – 2023 

Furthermore,  Article  69(1),  on  childhood,  provides  that,  with  a  view  to  their  integral 
development, children have the right to protection by society and the state, especially from 
all forms of abandonment, discrimination and oppression. Article 70 on youth establishes 
that ‘in order to ensure the effective fulfilment of their economic, social and cultural rights, 
young people shall enjoy special protection’. 

Besides the general clause on non-discrimination enshrined in Article 13, the prohibition of 
discrimination on the ground of disability is  explicitly provided for in Article 71(1) of the 
Constitution, which establishes that,  

‘citizens with physical or mental disabilities fully enjoy the rights and are subject to 
the duties enshrined in the Constitution, save for the exercise or fulfilment of those 
for which their condition renders them incapable.’ 

According to Article 71(2) of the Constitution, the state is obliged to have a national policy 
to  prevent  the  causes  of  disability;  to  provide  for  the  treatment,  rehabilitation  and 
integration  of  citizens  with  disabilities  and  to  support  their  families;  and  to  develop 
educational methods to raise society’s awareness of the duty to respect and show solidarity 
towards  citizens  with  disabilities.  The  state  must  assume  responsibility  for  the  effective 
exercise of the rights of those citizens, without prejudice to the rights and duties of their 
parents and guardians. Paragraph 3 of the same Article adds that ‘the State shall provide 
assistance to organisations for citizens with disabilities’. 

In addition, Article 72(1) and (2) of the Constitution, on the elderly, states that ‘the elderly 
have the right to economic security and to conditions in terms of housing and family and 
community life that respect their personal autonomy and avoid and overcome isolation or 
social  marginalisation’,  and  that  ‘the  policy  for  the  elderly  shall  include  measures  of  an 
economic, social and cultural nature that tend to provide elderly persons with opportunities 
for personal fulfilment by means of an active participation in community life.’ 

Article  73(1)  of  the  Constitution  provides  that  ‘everyone  has  the  right  to  education  and 
culture’. Article 73(2) states: 

‘The state shall promote the democratisation of education and the other conditions 
needed  for  an  education  conducted  at  school  and  via  other  means  of  training  to 
contribute  to  equal  opportunities,  [and]  the  overcoming  of  economic,  social  and 
cultural inequalities.’ 

With regard to access to education, Article 74 of the Constitution states that ‘everyone has 
the right to education with a guarantee of the right to equal opportunities for access to and 
success in schooling’. In education policies, the state must promote and support the access 
of persons with disabilities to education and, where necessary, support special education 
(Article  74(2)(g)).  This  constitutional  provision  aims  to  compensate  for  the  inherent 
disadvantages that may be suffered by persons with disabilities in order to guarantee real 
equality of opportunity. 

All provisions on specific rights should be read together with Article 13 of the Constitution, 
which enshrines the general clause on the principle of equality. 

According to Portuguese constitutional case law, differences in treatment are considered 
acceptable when they are based on an objective distinction of situations, have legitimate 
objectives  in  accordance  with  the  principles  of  the  Constitution  and  can  be  considered 
necessary,  adequate  and  proportionate  (see,  among  many  others,  Constitutional  Court 
Judgment No. 232/2003).40 

40   Constitutional Court, judgment of 13 May 2003, No. 232/2003, available at: 

www.tribunalconstitucional.pt/tc/acordaos/. 

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Country report - Non-discrimination – Portugal – 2023 

Some of these provisions are directly applicable, while others are not. 

In  order  to  clarify  this  question,  one  needs  to  draw  attention  to  the  fact  that  the 
Constitution makes a formal division between rights, freedoms and guarantees (civil and 
political  rights)  and  economic,  social  and  cultural  rights.  This  distinction  has  some 
substantive  consequences,  given  that  the  legal  regimes  of  both  groups  of  fundamental 
rights are rather different. 

Article  18(1)  of  the  Constitution  establishes  the  legal  force  of  the  provisions  on  rights, 
freedoms  and  guarantees.  It  concerns  the  direct  applicability  of  the  provisions  that 
enshrine rights, freedoms and guarantees and their binding effect  on public and  private 
persons and bodies. That means that all political and civil rights have binding effect over 
all public and private entities. 

In  contrast,  the  real  effects  of  the  constitutional  provisions  on  social  rights  have  been 
disputed since the very beginning of the Constitution’s entry into force. On the one hand, 
Article 18 of the Constitution does not directly apply to them, and they usually depend on 
the adoption of ordinary laws that develop their constitutional contents. Therefore, some 
authors argue that these fundamental rights are binding only when special conditions are 
met (for instance, when sufficient administrative and financial resources are provided by 
the  Government).  On  the  other  hand,  according  to  an  alternative  doctrinal  approach, 
although Article 18 of the Constitution does not apply to the binding effect of social rights, 
they are supposed to be similar to the rights, freedoms and guarantees in that respect. As 
a consequence, these fundamental rights are binding on the legislator, the executive and 
the courts. For people who make the latter argument, the main difference resides in the 
direct applicability, and not in the effectiveness and binding effect of the social rights – in 
summary, all fundamental rights must be effective and must have a binding effect. In spite 
of  these  differences,  there  is  a  consensus  in  the  case  law  and  in  academia  that  the 
Constitution  establishes  a  duty  to  pursue  the  full  implementation  of  social  rights,  with 
reasonable  delays,  depending  on  public  choices  and  resources,  and  always  in  a  non-
discriminatory way. 

These provisions can, in some circumstances, be enforced against private actors as well as 
against  the  state.  Where  provisions  on  rights,  freedoms  and  guarantees  (see  the 
explanation above) are implied, they are certainly binding on private actors. By contrast, 
where  economic,  social  and  cultural  rights  are  concerned,  their  binding  effect  must  be 
assessed case by case. 

The enforcement of non-discrimination provisions against private actors has been disputed 
in  education,  mainly  with  regard  to  gender  and  sexual  orientation  non-discrimination 
clauses. It is indeed debatable – although no specific case has so far been decided in the 
courts  –  whether  private  schools  (which  are  mostly  religious)  are  bound  to  apply  non-
discrimination  legislation  regarding  gender  identity  and  sexual  orientation.  The 
Constitutional Court decision No. 474/2021 of 23 July 2021 did not discuss the substance 
of  this  issue,  and  considered  only  that  the  norms  contained  in  paragraphs  1  and  3  of 
Article 12 of Law 38/2018 of 7 August 2018 (Right to self-determination of gender identity 
and  gender  expression  and  protection  of  the  sexual  characteristics  of  each  person)  that 
imposed obligations to both public and private schools were vague and indeterminate and, 
therefore, unconstitutional.41 

41   See: https://dre.pt/dre/detalhe/acordao-tribunal-constitucional/474-2021-168184700. 

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Country report - Non-discrimination – Portugal – 2023 

2  THE DEFINITION OF DISCRIMINATION  

2.1  Definition of the grounds of unlawful discrimination within the directives 

a) 

Racial or ethnic origin 

There is no legal definition for the notion of ‘race’. However, Article 4 of Law 93/2017 sets 
out a large number of discriminatory practices that are forbidden. 

The  definition  of  ‘ethnic  origin’  is  not  provided  in  the  legislation.  However,  the  same 
provisions that refer to ‘race’ or ‘racial origin’ also mention ethnic origin. 

In addition to ethnic origin or race, these provisions include nationality, territory of origin 
and  language  as  suspect  classifications,  because  they  are  covered  in  Article  13  of  the 
Portuguese Constitution. 

However, in the authors’ view, the Portuguese courts would, if such a case was brought to 
court, decide in accordance with the definition of ‘ethnicity’ provided by the Court of Justice 
of  the  European  Union  (CJEU)  in  its  CHEZ  judgment  (C-83/14,  paragraph  46; 
ECLI:EU:C:2015:480). 

b) 

Religion or belief 

The term ‘religion’ is also not defined in national law. However, according to Law 16/2001 
of 22 June42 (Law on Religious Freedom), ‘religious purposes’ are defined as the purposes 
of the ‘exercise of worship or rites, religious assistance, training of ministers of  religion, 
missionary work and dissemination of the professed denomination and religious education’ 
(Article 21(1)(a)). 

Although there is no case law on this issue, the definition of religion provided by the CJEU 
in  Achbita  (C-157/15,  paragraph  28)  must  be  observed  by  Portuguese  courts  where  it 
coincides with the definition followed by the European Court of Human Rights. In addition, 
in its jurisprudence,43 the Constitutional Court has emphasised that the protection that the 
Constitution  gives  to  the  freedom  of  religion  encompasses  both  the  individual  and  the 
collective  exercise  of  religion.  The  first  dimension  guarantees  a  space  of  individual 
autonomy  –  reserved,  intimate,  very  personal  –  of  beliefs.  The  externalised  subjective 
aspect of religious freedom gives people both the right to act freely in accordance with the 
respective convictions and beliefs in their relations with public authorities and others, and 
the  possibility  of  freely  engaging  in  activities  that  constitute  manifestations  and 
expressions of the religion they profess. 

The term ‘belief’ is not defined in national law. However, the Constitution (Article 13) and 
other national legislation (Article 25 of Labour Code) prohibits discrimination on the basis 
of political or ideological beliefs. The term ‘belief’ is of a broader nature than religion and 
can  include  political  and  ideological  opinions  with  a  certain  level  of  seriousness  and 
importance. 

42   Law 16/2001, 22 June, available at: 

https://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?artigo_id=806A0067&nid=806&tabela=leis&pagin
a=1&ficha=1&so_miolo=&nversao.  

43   Constitutional Court, judgments No. 544/2014 and No. 545/2014, available at: 

https://www.tribunalconstitucional.pt/tc/en/acordaos/20140544s.html. 

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Country report - Non-discrimination – Portugal – 2023 

c) 

Disability 

In contrast, Law 38/2004 of 18 August,44 which is not an anti-discrimination law, expressly 
defines a person with disabilities, in Article 2, as 

‘someone  who,  because  of  loss  or  irregularity,  whether  congenital  or  acquired,  of 
bodily  functions  or  structures,  including  psychological  functions,  has  specific 
difficulties that are likely, in combination with environmental factors, to limit or hinder 
their activity and participation on equal terms with others.’ 

This definition is also relevant for the purposes of non-discrimination law, as, according to 
the  rules  and  principles  of  legal  interpretation,  all  provisions  must  be  interpreted  in  a 
systematic  way.  In  fact,  as  there  is  no  definition  of  disability  in  the  Labour  Code,  some 
academic  literature  uses  the  definition  of  disability  provided  in  Law  38/2004  for  the 
purposes of determining who is protected from disability discrimination.  The definition is 
also in accordance with the concept used in the CJEU’s judgment of 11 April 2013 in Ring 
and  Skouboe  Werge  (joined  cases  C-335/11  and  C-337/11;  ECLI:EU:C:2013:222). 
However, due to the lack of jurisprudence in this context, it is impossible to provide any 
evidence base for this. In 2022 there were no judgments that discussed discrimination on 
the grounds of disability.45 However, The Disability and Human Rights Observatory (ODDH) 
has published the results of the report ‘Persons with Disabilities in Portugal - Human Rights 
Indicators  2022’,  that  gathers  statistical  and  administrative  data  related  to  disability 
discrimination, presenting the main trends and developments on the subject in 2021.46 
Article 6 of Law 38/2004 refers to the principle of non-discrimination as follows: 

‘A  person  shall  not  be  discriminated  against  either  directly  or  indirectly,  by  act  or 
omission,  on  the  basis  of  his/her  disability  (…).  A  person  with  disabilities  should 
benefit from all measures of positive action with the aim of ensuring the exercise of 
his/her rights and duties, correcting the present situation of inequality that persists 
within society.’  

This also applies to people discriminated against on the grounds that they had a disability 
in the past or that they will acquire one in the future (discovered, for instance, through 
genetic testing). 

The law recognises that  persons with disabilities do not constitute a homogenous group 
and that specific measures must therefore be taken in order to meet their different needs. 

Law 46/2006, which prohibits and punishes discrimination based on disability and on a pre-
existing  risk  to  health,  and  complements  Law  38/2004,  must  also  be  taken  into 
consideration. This Law states that its provisions are binding on all individuals and legal 
entities, private or public, and goes beyond the directive in the sense that it protects not 
only  persons  with  disabilities  but  also  persons  with  an  aggravated  risk  to  their  health 
(Article 3(b)). Although there is no definition of disability in this piece of legislation, Law 
46/2006 contains a definition of ‘persons with an aggravated risk to health’. According to 
Article  3(c)  (amended  by  Law 75/2021,  of  18  November),  a  person  with  an  aggravated 
risk to health is: 

44   Law 38/2004, 18 August, defining the general framework of the legal regime regarding disability prevention 
(Define as bases gerais do regime jurídico da prevenção, habilitação, reabilitação e participação da pessoa 
com deficiência), Diário da República, Série I-A, No. 194, 18 August 2004, available at: 
https://dre.pt/application/file/480649. 

45   The only case law the authors could trace on discrimination on the grounds of disability was decided on 23 
February 2016, by the Court of Appeal of Oporto, in proc. 3376/09.0TBPRD.P2, regarding discriminatory 
practices in the insurance market (available at: http://www.dgsi.pt/jtrp.nsf/-
/552BB3D2080FF10C80257F93003127A7). 

46   Available at: http://oddh.iscsp.ulisboa.pt/index.php/pt/2013-04-24-18-50-23/publicacoes-dos-

investigadores-oddh/item/600-relatorio-oddh-2022. 

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‘any person or persons suffering from an illness or disease causing long-term organic, 
functional, progressive and potentially disabling health changes, and causing changes 
to the physical, mental, emotional, social or economic quality of life of such persons, 
and  that  may  be  a  cause  of  early-years  disability  or  of  significant  reduction  in  life 
expectancy’.  

This  covers  situations  in  which  the  person  has  no  disability  as  of  yet,  but  has  a  health 
problem that could develop in a way that might result in a disability in future.47 

Within Law 75/2021 of 18 November, applicable in the insurance area, the basic concepts 
for non-discrimination purposes are as follows: ‘Persons who have overcome situations of 
aggravated health risk’ (people who can be shown to have been in a situation of aggravated 
health risk and who are no longer in such a situation, after a therapeutic protocol has been 
carried  out  which  has  been  shown  to  be  capable  of  significantly  and  durably  limiting  its 
effects); ‘Persons who have overcome their disability’ (persons who can be shown to have 
been  in  a  situation  of  disability  of  60 %  or  more  and  who  have  recovered  their 
psychological,  intellectual,  physiological  or  anatomical  structures  or  functions,  reducing 
their disability below this threshold); and ‘persons who have mitigated aggravated health 
risks or disability’ (persons who are undergoing treatment proven to limit significantly and 
durably the effects of their aggravated health risks or disability) (Article 2(a) to (c)). 

It  is  worth  noting  that  the  Labour  Code  also  prohibits  discrimination  on  the  ground  of 
chronic illness. However, this concept is also not defined. 

d) 

Age 

With  regard  to  the  ground  of  age,  the  Constitution  includes  references  to  childhood 
(Article 69),  youth  (Article  70)  and  the  third  age  (Article  72)  without  mentioning  the 
specific ages that correspond to each status. 

There are no restrictions on the scope of ‘age’ as a protected ground. There is no minimum 
age below which anti-discrimination law does not apply. There is no maximum age above 
which anti-discrimination law does not apply, which is important in preventing arguments 
and decisions based on ageism. 

On the other hand, age can be used as a defence: 

- 

- 

in criminal cases. Criminal liability starts at 16 years of age, and special legislation 
applies to persons between 16 and 21 years of age. 
in  civil  cases.  Article  488(2)  of  the  Civil  Code  establishes  a  presumption  of  non-
existence of civil liability for minors aged less than seven years. 

e) 

Sexual orientation 

There is no legal definition of sexual orientation. 

Some case law, although not defining directly what sexual orientation is, establishes some 
criteria for its establishment in concrete situations. 

This is the case of the decision of the Constitutional Court of 2010 that did not consider as 
unconstitutional  the  legislation  that  allowed  same-sex  marriages.48  In  this  decision,  the 
Court ascertained that:  

47   This provision refers to those who already have – are suffering from – an illness of disease (for instance 

cancer) and not to those who are predisposed to suffer from it at any given point in time. 

48   Constitutional Court, judgment No. 121/2010, available at: 

https://www.tribunalconstitucional.pt/tc/acordaos/20100121.html. 

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Country report - Non-discrimination – Portugal – 2023 

‘it is not necessary to make the concept of  “sexual orientation” explicit or specific, 
namely as a “suspect category” for the purposes of the prohibition contained in Article 
13(2) of the Constitution. The sexual orientation that is relevant in the context of the 
norm in question is the inclination towards union with a person of the same biological 
or  genetic  sex.  In  the  context  of  the  normative  option  under  consideration,  the 
morphological,  psychological  and  social  component  of  sexual  identity  and  the 
consequent legal determination of gender loses problematic relevance’. 

Therefore the Court, despite basing its arguments in biologic or genetic sex, for the purpose 
of  the  case  at  hand,  admits  that  other  factors  (morphological,  psychological  and  social) 
might be relevant. 

This  can  also  be  seen  in  cases  regarding  asylum  proceedings.  In  this  instance,  the 
in 
in 
Administrative  South  Central  Court, 
proc. 2749/16.7BELSB,49 decided that: 

its  decision  of  19  April  2018 

‘sexual  orientation  and/or  gender  identity  should  be  considered  as  innate  and 
unchangeable characteristics or at least as characteristics so fundamental to human 
dignity  that  a  person  should  not  be  forced  to  abandon  them,  and  it  is  not  a  valid 
reason for denying international protection to consider that the applicant may be able 
to avoid persecution by hiding or being discreet about his or her sexual orientation 
or gender identity, nor may the applicant be required to alter or conceal his or her 
identity, views or characteristics in order to avoid persecution’. 

It also adds that ‘the authorities responsible for the procedure must obtain information on 
the situation in the applicant’s country of origin with regard to the situation of homosexuals 
and their possible persecution by state and non-state agents’. 

2.2  Multiple and intersectional discrimination 

In  Portugal,  multiple  discrimination  is  prohibited  in  Law  93/2017  (Article  3(1)(e)  and 
Article 4(1)). 

According to these provisions, multiple discrimination is discrimination that results from a 
combination  of  two  or  more  discriminatory  grounds.  However,  Law  93/2017  does  not 
establish  more  severe  sanctions  for  multiple  discrimination  than  for  discrimination  on 
individual  grounds.  The  CEARD  through  its  Standing  Committee,  issues  condemnatory 
decisions, some of them dealing with multiple discrimination, but from the authors’ analysis 
this has not had a clear reflection on the concrete sanctions applied in such cases.50 

In Portugal, there are no judicial cases dealing with multiple discrimination. 

In  terms  of  administrative  complaints  and  according  to  the  annual  report  produced  by 
CEARD, during 2021, 3.9 % of the complaints received (a total of 16 out of 408) referred 
to  multiple  factors  of  discrimination.  Eight  of  those  referred  to  the  combination  of 
nationality and colour of skin.51  

However, as stated in the Report produced by CEARD (footnote 21 of the CEARD Report) 
if  a  case  of  multiple  discrimination  is  brought  before  CEARD  and  it  results  from  a 
combination of discriminatory practices on the basis of factors (e.g. sex, sexual orientation, 
disability or others) not covered by Law No. 93/2017, of 27 August, it will be deemed as 
‘incorrect’ (inadmissible). 

49   Available at: http://www.dgsi.pt/jtca.nsf/-/BDE419A9CE9BDEC78025828900328342. 
50   List of decisions issued by CEARD. Available at: https://www.cicdr.pt/decisoes. 
51   Available at: https://www.cicdr.pt/documents/57891/574449/20220809+-

+Relat%C3%B3rio+Anual+CICDR+2021_.pdf/a7777160-f69a-48dd-8156-80d6bfcc93d0. 

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If multiple discrimination includes factors included in the scope of Law No. 93/2017, of 27 
August  (for  instance  ethnic  origin  and  colour)  and  others  that  go  beyond  it  (sexual 
orientation, for instance), only the part of the complaint related to that legislation will be 
considered  (though  articulation  with  other  competent  authorities  in  the  specific  case  is 
possible). 

In the author’s view, the definition of multiple discrimination in Portugal, encompassed in 
Law 93/2017, is too narrow and does not allow for the consideration of the ‘multiplicity’ of 
forms that multiple discrimination may assume. 

In Portugal, intersectional discrimination is not explicitly prohibited by law. The notion of 
multiple discrimination only refers to additive multiple discrimination in which the specific 
discriminatory  factors  are  individually  identified.  However,  the  National  Plan  Against 
Racism and Non-Discrimination 2021-2025, establishes intersectionality as one of its four 
main principles, but does not define it.52 

2.3  Assumed and associated discrimination 

a)  Discrimination by assumption 

In  Portugal,  discrimination  based  on  a  perception  or  assumption  of  a  person’s 
characteristics is not expressly prohibited in national law. Law 93/2017 prohibits any form 
of discrimination, given the breadth of its definition: discrimination meaning: 

‘any distinction, exclusion, restriction or preference on the basis of the factors set out 
in Article 1 which has the purpose or effect of denying or restricting the recognition, 
enjoyment  or  exercise,  on  an  equal  basis,  of  rights,  freedoms  and  guarantees  or 
social and cultural economic rights’ (Article 3(1)(a)). 

However, although discrimination by assumption is not expressly prohibited or defined, it 
should be considered to be implicitly prohibited. 

There is no case law dealing with discrimination by assumption. 

b)  Discrimination by association 

In Portugal, discrimination based on association with persons with particular characteristics 
is  prohibited  by  national  law.  Law  93/2017  explicitly  prohibits  discrimination  based  on 
association (Articles 3(1)(d) and 4(1)) with persons with particular characteristics such as 
race/ethnic origin and other grounds including colour, nationality, ancestry and territory of 
origin. 53 

52   Available at: https://www.portugal.gov.pt/download-

ficheiros/ficheiro.aspx?v=%3d%3dBQAAAB%2bLCAAAAAAABAAzNDI3NgEAkTS69AUAAAA%3d. 

53   In a 2018 case involving the regulation of parental responsibility of a child with severe disability, the Court 
of Appeal of Lisbon took into consideration the risk of discrimination by association, deciding that both 
parents had the same duties vis-à-vis the child. The Court ordered joint custody, even though the parents 
disagreed. The Court considered that in a situation where a minor has serious disabilities and is totally 
dependent on third parties for any act of daily life, an order for joint custody fulfils the very important goal 
of involving parents under conditions of strict equality concerning personal and professional sacrifices. 
Although the decision does not expressly concern discrimination by association in employment, this ground 
was weighed in the Court’s decision to order joint custody of the minor, because the mother alleged, as 
being the only custodian, that she was severely harmed in respect of her professional life and therefore 
would face harsher difficulties if she were to continue to be the sole caretaker. See Court of Appeal of 
Lisbon, judgment of 28 November 2018, No. 2261/17.7T8PDL.L1-7, available at: 
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/10988407e6d97c068025838d005c694e?
OpenDocument&Highlight=0,defici%C3%AAncia,poder,paternal. 

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Country report - Non-discrimination – Portugal – 2023 

Portuguese law is in line with the CJEU’s judgment of 17 July 2008 in Coleman v. Attridge 
Law and Steve Law (C-303/06; ECLI:EU:C:2008:415). Although this is a case concerning 
disability not covered by Law 93/2017, the constitutional clause on non-discrimination and 
also the duty to interpret national legislation according to the directives should lead to the 
same results in respect of other grounds for discrimination. 

2.4  Direct discrimination (Article 2(2)(a)) 

a) 

Prohibition and definition of direct discrimination 

In Portugal, direct discrimination is prohibited and defined in national law.  

Article 3(1)(b) of Law 93/2017 considers direct discrimination to occur when, due to racial 
or ethnic origin or other grounds (nationality, ancestry and territory of origin), a person or 
a group is subject to less favourable treatment than another is, has been or would be in a 
similar situation. 

Article 3(a) of Law 46/2006 states that:  

‘direct  discrimination  occurs  when  a  person  with  disabilities  is  subject  to  less 
favourable treatment than another is, has been or would be in a similar situation.’ 

Article  4  gives  some  examples  of  direct  discrimination:  the  refusal  to  provide  or  the 
impeding of the taking up of goods or services; an impediment to or limitation of access 
to and normal exercise of an economic activity; an impediment to or limitation of access 
to buildings and public spaces; or the adoption of measures which may limit access to new 
technologies. 

Article 23(1)(a) of the Labour Code defines direct discrimination as: 

‘when  a  person,  due  to  one  of  the  factors  referred  to  above,  is  subject  to  less 
favourable treatment than another is, has been or would be in a similar situation.’ 

Article 5(2)(a) of Law 3/2011 defines direct discrimination as:  

‘when  a  person,  due  to  one  of  the  grounds  of  discrimination,  is  subject  to  less 
favourable treatment than another is, has been or would be in a similar situation.’ 

The  definition  included  in  Article  3(1)(b)  of  Law  93/2017  refers  both  to  individuals  and 
groups.  

The other definitions refer only to individuals. To date, there is no case law extending these 
definitions to groups. 

b) 

Justification for direct discrimination 

The law permits direct discrimination to be justified in a very few areas that are covered 
by genuine occupational requirements. 

The Labour Code states in Article 25(2) that:  

‘it  does  not  constitute  any  discrimination  when  the  behaviour  based  on  a 
discrimination 
justifiable  and  determining  occupational 
requirement  for  the  exercise  of  the  profession,  given  the  nature  of  the  activity  in 
question or the context of its implementation, where it is objectively justified by a 
legitimate aim and the means of achieving that aim are proportionate.’ 

factor  constitutes  a 

24 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

The same reasoning is accepted by Article 3(b) in fine of Law 46/2006, and Article 5(4)(a) 
and (b) of Law 3/2011. 

However,  Law  93/2017  does  not  permit  any  justification  when  it  relates  to  direct 
discrimination. 

2.5  Indirect discrimination (Article 2(2)(b)) 

a) 

Prohibition and definition of indirect discrimination 

In Portugal, indirect discrimination is prohibited and defined in national law. The definition 
of  indirect  discrimination  in  Portuguese  law  complies  with  the  definitions  given  in  the 
directives. 

Law 93/2017 states in Article 3(1)(c) that:  

‘indirect  discrimination  occurs,  due  to  racial  or  ethnic  origin  and  other  grounds 
(nationality,  ancestry  and  territory  of  origin),  whenever  an  apparently  neutral 
provision,  criterion  or  practice  places  a  person  or  a  group  in  a  less  advantageous 
situation than other persons.’ 

Law 46/2006, which prohibits and punishes discrimination based on disability and on a pre-
existing risk to health, follows the same wording (Article 3(b)). 

Article 23(1)(b) of the Labour Code uses similar wording. 

Article 5(2)(b) of Law 3/2011 defines indirect discrimination as: 

‘when an apparently neutral provision, criterion or practice would put a person with 
one of the grounds of discrimination in a less advantageous situation compared with 
other persons.’ 

b) 

Justification test for indirect discrimination 

According to Article 3(1)(c) of Law 93/2017, indirect discrimination can be justified if the 
provision, criterion or practice deemed discriminatory is objectively justified by a legitimate 
aim, and the means of achieving that aim are appropriate and necessary. 

Article 3(b) of Law 46/2006 follows the same wording. 

Under  Article  23(1)(b)  of  the  Labour  Code,  indirect  discrimination  can  be  justified  if  the 
provision, criterion or practice deemed discriminatory is objectively justified by a legitimate 
aim,  and  the  means  of  achieving  that  aim  are  appropriate  and  necessary.  The  text  of 
Article 2(2)(b)(i) of the directive is thus reproduced. 

Article  5(4)(a)(b)  of  Law  3/2011  adopts  the  definition  of  the  justification  for  indirect 
discrimination  in  the  Labour  Code,  but  clarifies  that  the  assessment  of  the  legitimate 
objectives should take into account the nature of the activity or the context of its exercise, 
and gives examples of some activities in relation to which this type of discrimination can 
be justified, such as fashion, publicity or show business. 

This  is  the  only  rule  defining  legitimate  aims.  The  courts  would  decide  what  constitutes 
appropriate  and  necessary  means,  based  on  general  principles  of  law  and  on  the 
circumstances, following the precedents of the CJEU and of the European Court of Human 
Rights. However, no such cases have come to court so far. 

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Country report - Non-discrimination – Portugal – 2023 

2.5.1  Statistical evidence 

Section 2.5.1 has not been updated for 2022. Regarding the legal framework and practice, 
please  see  Country  report  Non-discrimination  Portugal  2022,  Transposition  and 
implementation  at  national  level  of  Council  Directives  2000/43  and  2000/78,  Reporting 
period 01.01.2021 – 01.01.2022. 

2.6  Harassment (Article 2(3)) 

a) 

Prohibition and definition of harassment 

In Portugal, harassment is prohibited and defined in national law. 

Articles  163(2)  and  164(2)  of  the  Criminal  Code  regarding  sexual  coercion  and  sexual 
abuse  define  ‘harassment’  as  the  ‘abuse  of  authority  resulting  from  a  hierarchical, 
economic or employment relationship, by means of an order or threat’. 

This definition is more restrictive than that contained in Article 29(1) of the Labour Code, 
in which harassment is defined as any form of unwanted behaviour, especially if it is based 
on  a  discriminatory  factor,  practised  in  the  context  of  access  to  employment,  self-
employment, work or training, with the purpose or effect of upsetting or embarrassing the 
person,  affecting  his/her  dignity  or  of  creating  an  intimidating,  hostile,  degrading, 
humiliating or offensive environment. 

Article 29(2) stresses that ‘any unwanted verbal, non-verbal, or physical behaviour of a 
sexual nature, with the purpose or the effect described in the previous section’, constitutes 
sexual harassment. 

Under Article 129(1)(c) of the Labour Code, an employer may not exert any pressure on 
an employee in order to adversely influence him/her or his/her own or his/her co-workers’ 
working conditions. 

Definitions in similar terms are contained in Article 5(5) and 5(6) of Law 3/2011. 

Article  3(1)(f)  of  Law  93/2017  defines  harassment  as  any  form  of  unwanted  conduct 
related  to  racial  or  ethnic  origin  with  the  purpose  or  effect  of  violating  the  dignity  of  a 
person  or  a  group  of  persons  and  of  creating  an  intimidating,  hostile,  degrading, 
humiliating or offensive environment. 

This means that Law 93/2017 extends the concept of harassment to include the dignity of 
groups. 

In Portugal, harassment explicitly constitutes a form of discrimination (see Article 3(2) of 
Law  93/2017  and  Article  29(1)  of  the  Labour  Code),  and  the  concept  of  harassment  in 
national law coincides with the notion of harassment that can be found in Article 2(3) of 
the directive. 

Law  46/2006,  which  directly  concerns  disability  discrimination,  does  not  contain  any 
provisions  relating  to  harassment.  However,  taking  into  account  the  protection  from 
harassment under the Labour Code, which also relates to disability, the law offers sufficient 
protection. 

As regards housing, Law 12/201954 forbids and  punishes harassment in lease contracts. 
Articles  13-A  and  13-B  state  that  harassment  is  forbidden  in  leases  and  subletting 
contracts; harassment being any unlawful behaviour of the owner, their representative or 

54   Law 12/2019, 12 February, forbidding and punishing harassment in lease contracts, (fifth amendment to the 

New Urban Lease Regime), available at: https://data.dre.pt/eli/lei/12/2019/02/12/p/dre/pt/html. 

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

a third person interested in the acquisition or commercialisation of the leased asset that, 
in order to provoke the vacancy of the asset, perturbs, constrains or affects the dignity of 
the tenant, subtenant or persons that, in a legitimate manner, reside with them, or subjects 
them to an intimidatory, hostile, degrading, dangerous, humiliating, unstable or offensive 
environment, or gravely impedes or prejudices access to or fruition of the leased object.  

The prohibition and definition of harassment in national law are confirmed by the case law 
of the Courts of Appeal.55 

In a recent case, the concept of harassment was discussed by labour courts.56 In the case, 
a worker recruited as a physiotherapist in 2000 and who had developed an occupational 
disease  refused to work, given the  employer’s  unavailability to adapt her functions. The 
claimant brought a claim to the court on the basis that the dismissal was unlawful and that 
she  had  been  subjected  to  discriminatory  harassment.  The  first-instance  court  deemed 
that the behaviour of the employer constituted moral harassment, but not discriminatory 
harassment. However, the second-instance court decision, now final, rejected her claim, 
arguing that the intention of the employer was not to punish the worker and that none of 
the employer’s attitudes was a humiliating and vexatious situation for the claimant. 

b) 

Scope of liability for harassment 

Individual employees and employers can be held liable for harassment in the workplace. 

A  victim  of  work  harassment  is  entitled  to  indemnification  for  any  damages  suffered, 
including for pain and suffering (Article 29(4) of the Labour Code). 

The  practice  of  harassment  at  work  is  considered  to  be  a  very  serious  administrative 
offence (contra-ordenação muito grave), besides any criminal responsibility that may exist 
as well (Article 29(5) of the Labour Code).  

Under the Labour Code, an employer is responsible for their acts and those of their agents 
and employees with respect to harassment. The sources of employer liability are several. 

Companies with seven or more employees are obliged to adopt a code of good practice to 
prevent and combat work harassment. The violation of this obligation by the employer is 
considered a serious administrative offence (Article 127(1)(k) and (7) of the Labour Code). 

In addition, an employer is obliged to launch a disciplinary procedure whenever it becomes 
aware of the possibility that harassment is being conducted in the workplace. The violation 
of  this  obligation  by  the  employer  is  considered  a  serious  administrative  offence 
(Article 127(1)(l) and (7) of the Labour Code). 

55   Court of Appeal of Porto, judgment of 7 May 2018, procedure No. 2326/16.2T8VNG.P1, available at: 

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/7e394362a4d2ffb4802582c1002efa1a?O
penDocument&Highlight=0,n%C3%A3o,discrimina%C3%A7%C3%A3o; Court of Appeal of Porto, judgment 
of 8 November 2018, procedure No. 1312/17.0T8VNG.P1, available at: 
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/4e1d5ab64d051c2b80258384003ee0d9?
OpenDocument&Highlight=0,n%C3%A3o,discrimina%C3%A7%C3%A3o; Court of Appeal of Évora, 
judgment of 4 April 2018, procedure No. 903/16.0T8STC.E1, available at: 
http://www.dgsi.pt/jtre.nsf/134973db04f39bf2802579bf005f080b/bd0b9c871857dc0b8025827b002d2a41?
OpenDocument&Highlight=0,n%C3%A3o,discrimina%C3%A7%C3%A3o; Court of Appeal of Lisbon, 
judgment of 23 October 2019, procedure No. 12472/18.2T8SNT.L1-4, available at: 
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/da6a83317d8ba1a0802584a2003f2a2c?O
penDocument&Highlight=0,assédio; Court of Appeal of Lisbon, judgment of 8 September 2020, procedure 
No. 21426/18.8T8SNT.L1-4, available at: 
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/930d57361db79d008025860700471604?
OpenDocument&Highlight=0,ass%C3%A9dio. 

56   See Court of Appeal of Porto, judgment of 13 July 2022, No. 3444/20.8T8MAI.P1 available at: 

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/f55c5a39abe92770802588a300507225?
OpenDocument&Highlight=0,ass%C3%A9dio. 

27 

 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

The practice of harassment is expressly included in the list of behaviours adopted by the 
employer  or  other  employees  that  may  constitute  a  fair  ground  for  termination  of  the 
employment  contract  by  the  employee,  the  latter  being  entitled  to  compensation 
(Article 394(2)(b)(f) and Article 396 of the Labour Code). 

Finally,  the  employer  is  held  responsible  for  repairing  any  damage  resulting  from 
professional  hardship  caused  by  work  harassment.  For  this  purpose,  Social  Security  will 
bear  the  costs  for  the  damage  repair,  being  entitled  to  claim  reimbursement  from  the 
employer, plus interest (Article 283(8) and (9) of the Labour Code). The employer can also 
be entitled to reimbursement against the employee harasser under certain circumstances. 

Trade  unions  or  other  trade/professional  associations  are  liable  for  the  actions  of  their 
directors, representatives and officers; they are liable for the actions of their members only 
if the actions occur in a situation in which the members represent these bodies, or they 
are acting in accordance with instructions given by a union or an association. 

In the case of housing, besides any criminal, civil or administrative responsibility that might 
exist,  the  tenant  may  use  a  special  notification  process  to  cease  being  the  victim  of 
harassment.  The  tenant  must  notify  the  owner  to  adopt  actions  necessary  to  cease  the 
production of noise above the legal limit, for instance, or ensure that there continues to be 
a connection to essential services such as water or electricity. 

Within  30  days  of  receiving  such  a  notification,  the  owner  must  demonstrate  that  the 
necessary measures have been adopted or justify why the necessary behaviours have not 
been implemented. As a consequence, the tenant might ask for an injunction against the 
landlord and a pecuniary sanction of EUR 20 per day until fulfilment of the notification or 
the issuing of an injunction. 

Of particular relevance to this report, it should be noted that the sanction is increased by 
50 % when the tenant is older than 65 or has a disability to a degree that is equal to or 
higher  than  60 %.  Indeed,  since  in  such  cases  there  is  still  strong  legal  protection  for 
tenants against eviction, there is a fear that harassment practices are repeated and more 
serious. 

2.7  Instructions to discriminate (Article 2(4)) 

a) 

Prohibition of instructions to discriminate 

In Portugal, instructions to discriminate are prohibited in national law, not only in the field 
of employment but also in the access to and exercise of self-employment, social protection, 
social advantages, education and access to goods and services. The concept of instruction 
to  discriminate  is  not  defined  as  such,  but  several  provisions  allude  to  it  and  try  to 
exemplify its meaning. 

In Portugal, instructions explicitly constitute a form of discrimination. 

Article 23(2) of the Labour Code  expressly states that, ‘a mere order or instruction with 
the  purpose  of  disadvantaging  any  person  by  reason  of  a  discriminatory  factor’  will  be 
deemed to constitute discrimination. Moreover, Article 5(1) of Law 46/2006 complements 
the articles laid down in the Labour Code. Under this article, in addition to the Labour Code, 
the  adoption  of  procedures,  measures  or  criteria  directly  by  the  employer  or  through 
instructions given to workers or job centres, which may make the recruitment of employees 
and  the  termination  of  work  contracts  conditional  on  factors  of  a  physical,  sensory  or 
mental nature, are deemed to be discriminatory practices against persons with disabilities. 

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Country report - Non-discrimination – Portugal – 2023 

Article 5(3) of Law 3/2011 also considers that discrimination can involve a mere order or 
instruction with the purpose of disadvantaging any person by reason of a discriminatory 
factor. 

Incitement  is  included  in  Article  240(2)  of  the  Criminal  Code,  which  imposes  penal 
sanctions on anyone who, in a public meeting, in writing intended for dissemination or by 
any other means of social communication, provokes acts of violence against an individual 
or  group  of  individuals  on  the  grounds  of  their  race,  colour,  ethnic  or  national  origin, 
ancestry,  religion,  gender,  sexual  orientation,  gender  identity  and  physical  or  mental 
disability  with  the  intention  of  inciting  or  encouraging  racial  or  religious  discrimination. 
Such persons will be punished by imprisonment of between six months and five years. 

Article 3(3) of Law 93/2017 also provides that instructions to discriminate are deemed to 
constitute  discrimination  and  are  forbidden.  In  addition,  Article  4(2)(j)  of  this  Law 
establishes  that  ‘the  adoption  of  an  act  in  which,  publicly  or  with  intent  to  disseminate 
widely, a statement is made or information is transmitted by virtue of which a person or 
group of persons is threatened, insulted or demeaned by reason of any of the factors set 
out in Article 1’ is prohibited. 

Article 5(1) of Law 46/2006 also inscribes that:  

‘1 - In addition to the  provisions  of the  Labour Code, the  following are  considered 
discriminatory  practices  against  people  with  disabilities:  (a)  The  adoption  of  a 
procedure,  measure  or  criterion,  directly  by  the  employer  or  through  instructions 
given to its employees or to an employment agency, that subordinates to factors of 
a physical, sensory or mental nature the offer of employment, the termination of a 
work  contract  or  the  refusal  to  hire;  b)  The  production  or  dissemination  of  job 
advertisements, or other forms of advertising related to pre-selection or recruitment, 
which contain, directly or indirectly, any specification or preference based on factors 
of  discrimination  on  the  basis  of  disability;  (c)  the  adoption  by  an  employer  of  a 
practice  or  measure  which,  in  the  context  of  the  employment  relationship, 
discriminates against an employee in his or her employ’. 

b) 

Scope of liability for instructions to discriminate 

In Portugal, the instructor and the discriminator are liable (Article 15 of Law 93/2017 and 
Articles 23(2) and 28 of the Labour Code). 

There are no specific rules about sharing liability. As a general matter under Portuguese 
law, joint and several liability is exceptional and is recognised only when a legal provision 
explicitly provides for this regime or when it is stipulated by the parties (Article 513 of the 
Civil Code). That is the case for liability under Law 93/2017, which is an example of tort 
liability. According to Article 497(1) of the Civil Code, in the event of tort liability, when 
several  parties  are  responsible  for  the  damages  caused,  their  liability  will  be  joint  and 
several. 

Article 11 of the Criminal Code; Article 7 of the General Rules on Minor Offences (Regime 
Geral das contra-ordenações), adopted by Decree-Law 433/82 of 27 October 1982; and 
Article 551 of the Labour Code set out the liability of legal persons for such actions. 

29 

 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

2.8  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5 

Directive 2000/78) 

a) 

Implementation of the duty to provide reasonable accommodation for persons with 
disabilities in the area of employment 

In Portugal, the duty on employers to provide reasonable accommodation for persons with 
disabilities is included in the law, and is not defined. 

This duty derives from Articles 85 to 88 of the Labour Code. 

According to Article 85(1) of the Labour Code, persons with disabilities or chronic disease 
are  guaranteed  equal  treatment.  Under  Article  85(3),  the  violation  of  this  principle 
constitutes a serious offence. 

Article 85(2) provides that the state will stimulate and support the actions of employers in 
employing workers with disabilities or chronic disease. 

Article 86 is headed ‘Positive measures in favour of the worker with disabilities and chronic 
disease’.  The  first  paragraph  deals  with  the  question  of  reasonable  accommodation, 
establishing  that  the  employer  has  a  duty  to  provide  reasonable  accommodation.  That 
means  that  the  employer  must  adopt  appropriate  measures  to  enable  a  person  with  a 
disability or a chronic disease to have access to and participate in work, to progress in his 
or  her  career  and  to  undertake  training,  unless  such  measures  would  impose  a 
disproportionate  burden  on  the  employer.  The  burden  will  not  be  considered 
disproportionate  if  it  is  sufficiently  alleviated  by  legal  measures  that  exist  within  the 
framework of national disability policy, or if it is compensated for by the state in terms to 
be provided for in special legislation. 

According  to  Articles  87  and  88  of  the  Labour  Code,  several  rights  are  guaranteed  for 
workers with disabilities. These include: the right to be exempted from a specific number 
of working hours (Article 87), if it is medically proven that this would constitute a danger 
to their health or safety at work; the right not to perform overtime (Article 88); and the 
right not to work at night, if that would constitute a risk to their health or to the safety of 
the workplace (Article 87(1)(b)). The risk must be objectively evaluated (for instance, by 
a physician) and not solely by the employer (Article 87(2)). 

Recently, Law 90/2019 of 4 September 2019 has extended these rights to employees with 
cancer. 

In addition, Law 46/2006 establishes that the employer has an obligation to carry out the 
appropriate measures,  according to the needs  of a  specific  situation, so that the person 
with disabilities may have access to a job, or may progress in it, or so that he/she may be 
provided  with  training,  except  if  these  measures  imply  disproportionate  costs  for  the 
employer’ (Article 5(4)). 

Neither Labour Code nor Law 46/2006  specify when the duty applies;  nor do they state 
the criteria for assessing the extent of the duty; and there is no definition of ‘reasonable’ 
or  ‘disproportionate  burden’.  However,  as  part  of  that  determination,  the  criteria  to 
ascertain  what  configures  reasonable  accommodation  established  in  the  decision  of  the 
CJEU  in  DW  v.  Nobel  Plastiques  Ibérica  SA  (C-397/18;  ECLI:EU:C:2019:703)  must  be 
considered by national courts, as results from the demand of interpretation of national law 
according to European Union law. 

30 

 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

According to Article 86(2) of the Labour Code, the competent national authorities57 must 
advocate the adoption of reasonable accommodation by employers and create incentives 
for action in this field. In other words, the state has a duty to provide support to employers. 
In  respect  of  this  support,  Decree-Law  290/2009  of  12  October  2009  established  the 
employment and skills assistance programme for persons with disabilities (PEAQPDI) and 
approved the scheme providing technical and financial assistance for the development of 
employment  and  skills  assistance  policies  for  persons  with  disabilities.  The  measures 
include  the  adaptation  of  jobs  and  the  elimination  of  architectural  barriers.  Specific 
protection measures may also be established by law or collective bargaining agreement for 
workers with disabilities or chronic illnesses (Article 86(4) of the Labour Code). 

Article  5(5)  of  Law  46/2006  also  establishes  that  the  burden  is  not  considered 
disproportionate when it is sufficiently compensated by measures promoted by the state 
for the professional integration of citizens with disabilities. 

In summary, the employer has an obligation to grant reasonable accommodation, if it does 
not require disproportionate expenses. If there is state help available, then the burden is 
not considered disproportionate. If no state help is available, an analysis of the justification 
for the employer not to offer reasonable accommodation is in order. The INR should give 
an opinion on this matter, in accordance with Article 5(6) of Law 46/2006. 

The Labour Code does not provide a list of appropriate measures to adapt the workplace 
to the disability, nor does it mention specifically/explicitly the obligation to adjust possible 
available  jobs  to  those  employees’  condition.  In  fact,  in  the  Portuguese  legislation,  this 
accommodation is clearly established only for employees who are injured as a result of a 
working  accident  or  who  are  victims  of  a  professional  disease  (Law  98/2009  of 
4 September 2009,  Articles  155  to  164).  According  to  some  authors,58  this  is  the  only 
situation  where  there  is  an  obligation  to  reassign  a  worker  to  another  position.59  In 
contrast, other authors think that reassigning a worker with disabilities to another post in 
the company can be regarded as an accommodation measure, in which case it does not 
constitute a disproportionate burden on the employer.60 According to those authors, the 
lack of a legal list of possible reasonable accommodation measures may indicate that the 
concept should be interpreted broadly and there is no reason to exclude extending the duty 
of  reasonable  accommodation  to  include  the  reassignment  of  a  worker  or  at  least  a 
redistribution  of  tasks  if  that  is  a  reasonable  and  proportionate  measure.  The  point, 
however  doubtful  in  Portuguese  doctrine,  should  be  read  in  accordance  with  the  ECJ 
decision 
in  XXXX  v.  HR  Rail  SA,  of  10  February  2022,  proc. C-485/20 
(ECLI:EU:C:2022:85), according to which: 

‘Article  5  of  Council  Directive 2000/78/EC  of  27  November  2000  establishing  a 
general  framework  for  equal  treatment  in  employment  and  occupation  must  be 
interpreted as meaning that the concept of ‘reasonable accommodation’ for persons 
with disabilities, within the meaning of that article, requires that a worker, including 
someone undertaking a traineeship following his or her recruitment, who, owing to 
his or her disability, has been declared incapable of performing the essential functions 
of the post that he or she occupies, be assigned to another position for which he or 

57   Usually the Government and the Ministry of Employment. 
58   See, eg., Pedro Romano Martinez., Direito do Trabalho, 7.ª ed., Almedina, Coimbra, 2015, p. 929; Maria do 

Rosário Palma Ramalho, Tratado de Direito do Trabalho, Parte II – Situações Laborais Individuais, 5.ª 
edição, Almedina, Coimbra, 2014, p. 870. 

59   In a decision of Lisbon Court of Appeal of 29 May 2007 (and of the Supreme Court of 24 September 2008), 
the Court reached the same conclusion. In this case, a cook was identified by the occupational physician as 
HIV-positive and his contract was considered expired by the employer, a position which ended being 
confirmed by the courts. The courts ruled that being HIV-positive entailed an objective and absolute inability 
to perform job functions and that the employer was not obliged to reassign the employee. 

60   Milena Rouxinol, ‘Notes on the principle of inclusion of employees suffering from disability’, Lex Social, 

Revista Jurídica de los Derechos Sociales, 1/2017, p. 295. 

31 

 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

she has the necessary competence, capability and availability, unless that measure 
imposes a disproportionate burden on the employer’. 

Indeed, as the question of reassigning a worker as a reasonable accommodation measure 
is not expressly resolved by the Portuguese law, this judgment plays a significant role to 
support  the  second  approach  mentioned  above  and  to  ensure  coherence  between  the 
Portuguese system and the Council Directive 2000/78/EC. 

b) 

Case law 

There are no references to case law on the website of the Authority for Working Conditions 
(Autoridade para as Condições de Trabalho  -  ACT). Likewise, there are no  references to 
this matter on the website of the National Institute for  Rehabilitation (Instituto Nacional 
para a Reabilitação – INR).61 

The  authors  of  this  report  have  not  found  any  recent  case  law  discussing  the  duty  of 
reasonable accommodation. However, in the authors’ view, the question should have been 
raised  in  a  recent  Porto  Court  of  Appeal  decision  of  13  July  2022.62  In  the  case,  the 
employee  was  recruited  as  a  physiotherapist  in  2000.  In  2017,  she  was  diagnosed  with 
disease in her hands – contact dermatitis – that required some measures to accommodate 
the  worker’s  situation.  The  employer  refused  to  adapt  her  functions  and  in  2020,  the 
employee  was  dismissed  on  the  grounds  of  wilful  disobedience.  The  claimant  brought  a 
claim  to  the  court  on  the  basis  that  the  dismissal  was  unlawful  and  that  she  had  been 
subjected to discriminatory harassment, which the Court of Appeal considered unfounded. 

Although the case was focused on the concept of harassment, the issue could have been 
analysed  according  to  definition  of  a  disability  for  the  purposes  of  claiming  reasonable 
accommodation  for  persons  with  disabilities  in  the  area  of  employment.  We  believe 
therefore  that  the  criteria  established  in  DW  v.  Nobel  Plastiques  Ibérica  SA  (C-397/18; 
ECLI:EU:C:2019:703) were not properly applied in this case. 

c) 

Definition of disability and non-discrimination protection 

The definition of a disability63 for the purposes of claiming reasonable accommodation is 
no different from the definition for claiming protection from discrimination in labour law. 
There is no definition of chronic illness. 

61   However, see Porto Court of Appeal, judgment of 24 February 2014, procedure No.º 361/12.9TTMTS.P1, 

available at: 
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/009f7692447ae11280257c92003f7ab4?O
penDocument. In this case, the employee worked as an image technician (‘manager’) in a cinema on a 
rotating shift schedule. He had been diagnosed with a condition that prohibited him from working from 7pm 
and for more than five consecutive days. Due to this medical limitation, the employee asked for a schedule 
change (a fixed work schedule) but the employer refused his request, offering him a part-time position in 
the cinema box office. The employee refused the proposal and the employer communicated the expiration of 
the employment contract due to the supervening, absolute and definitive impossibility of providing the work. 
The termination of the contract was confirmed by the Court, which decided that the accommodation 
required by the employee would impose a disproportionate burden on the employer, and concluded that the 
employer ‘had not to adapt its organisational structure and functioning to continue receiving the benefit of a 
worker who, meanwhile, was not able, for physical/medical reasons to perform the provision of the work in 
terms that he had been doing until then’. 

62   See Court of Appeal of Porto, judgment of 13 July 2022, No. 3444/20.8T8MAI.P1 available at: 

http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/f55c5a39abe92770802588a300507225?
OpenDocument&Highlight=0,ass%C3%A9dio. 

63   As mentioned above, the definition of ‘disability’ is included in Law 38/2004 of 18 August 2004, which is not 
an anti-discrimination law. According to Article 2, a person with disabilities is ‘someone who, because of loss 
or irregularity, whether congenital or acquired, of bodily functions or structures, including psychological 
functions, has specific difficulties that are likely, in combination with environmental factors, to limit or 
hinder their activity and participation on equal terms with others’. 

32 

 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Portuguese law protects not only persons with disabilities but also those with an aggravated 
risk to health (although Law 46/2006 does not define disability, it prohibits and punishes 
discrimination  based  on  disability  and  on  a  pre-existing  risk  to  health).  Persons  with  an 
aggravated risk to health can also claim for reasonable accommodation. 

d) 

Failure to meet the duty of reasonable accommodation for persons with disabilities 

In  Portugal,  failure  to  meet  the  duty  of  reasonable  accommodation  in  employment  for 
persons with disabilities is not explicitly recognised by law as a form of discrimination, but 
it is suggested. 

In fact, Law 46/2006 establishes that, in order to ascertain if a practice is discriminatory, 

‘the feasibility of the employer carrying out the appropriate measures, according to 
the needs of a specific situation, so that the person with disabilities may have access 
to a job or may progress in it, or so that he/she may be provided with training, shall 
be analysed, except if these measures imply disproportionate costs for the employer’. 

Article  9(5)  of  Law  46/2006  states  that  any  discriminatory  act  stipulated  in  Article  5 
amounts to a very serious offence. Violation of these provisions is sanctioned with fines, 
with amounts depending on the business volume of the company and whether the offence 
was negligent or practised with intent (dolus), according to Article 554(4) of the Labour 
Code. 

An individual to whom reasonable accommodation is denied can either complain to ACT, 
which must investigate the situation, or file a case in the labour courts. 

The Labour Code also refers to the same obligations in Articles 85 and 86. Although the 
failure to provide reasonable accommodation is not explicitly  typified as a discriminatory 
act (this is not even a concept used in those Articles), it should be considered so, through 
judicial interpretation, in harmony with the solution established in Law 46/2006. 

In addition, as the duty to provide reasonable accommodation always implies a judgment 
of  proportionality,  it  might  be  that  the  duty  exists  independently  of  the  law  detailing 
financial assistance to employers. It is worth noting that further clarification and judicial 
interpretation  is  needed  on  this  point.  It  is  certainly  the  case  that  reasonable 
accommodation that does not cost any money at all is an intrinsic right, and a refusal to 
provide it is discriminatory. 

Besides that, the employer does not have any duty to ask for funding from the state, and 
a failure to ask  for funding does not lead to a breach of the  reasonable accommodation 
duty. 

The adaptation of jobs and the elimination of architectural barriers are the responsibility 
of  employers  and  may,  in  exceptional  circumstances,  be  financed  by  the  Institute  of 
Employment  and  Professional  Training  (IEFP)  under  certain  conditions  (Article  32  of 
Decree-Law  290/2009).  The  IEFP  partially  finances  enterprises  to  provide  reasonable 
accommodation  for  employees  with  disabilities  in  their  premises,  in  order  to  overcome 
functional difficulties and eliminate physical barriers that prevent or hinder access to the 
workplace. According to ACT, a violation of this provision may lead to a fine. Cases can be 
brought to either ACT or the labour courts. 

The  rules  governing  the  shift  of  the  burden  of  proof  concerning  the  right  to  reasonable 
accommodation are the same as for other grounds of discrimination (direct or indirect) – 
Article 6(1) of Law 46/2006. 

33 

 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

e)  Duties  to  provide  reasonable  accommodation  in  areas  other  than  employment  for 

persons with disabilities 

In  Portugal,  there  is  a  duty  to  provide  reasonable  accommodation  for  persons  with 
disabilities  in  the  area  of  education,  according  to  Decree-Law  54/2018  of  6  July,  which 
repealed  Decree-Law  3/2008  of  7  January,  and  establishes  the  legal  framework  for 
inclusive education. The new legal framework applies to school clusters and non-clustered 
schools, vocational schools and private, cooperative and solidarity pre-primary, basic and 
secondary education establishments. 

According  to  Decree-Law  54/2018,  each  school  should  recognise  the  diversity  of  its 
students  and  identify  ways  of  dealing  with  that,  adapting  the  teaching  processes  to  the 
characteristics  and  individual  conditions  of  each  student  and  mobilising  the  necessary 
means to ensure access to the curriculum and to learning. Instead of categorising students 
with ‘special educational needs’, or creating a special legal framework based on diagnoses 
of  learning  difficulties,  the  legal  framework  for  inclusive  education  aims  to  respond  to 
students’  different  needs.  It  determines  support  measures  for  learning  and  inclusion, 
curriculum areas and specific resources to be used to meet all learners’ educational needs 
throughout their schooling and the different education and training provision. – Article 6. 

The  different  support  measures  for  learning  and  inclusion  represent  an  integrated 
continuum of action, and are divided into three levels: universal, selective and additional 
measures  (e.g.,  curriculum  adjustments,  major  and  non-major  curriculum  adaptations, 
psycho-pedagogical support) – Article 7. 

The measures are adopted according to the material and human resources available at the 
school. When the implementation of the measures implies the use of additional resources, 
the school director must request, on grounds, such resources from the competent service 
of the Ministry of Education (Articles 9(4)(5) and 10(7)(8)). Disproportionate cost is not a 
limit as with regard to employment. 

In areas such as housing, there is no specific duty to provide reasonable accommodation 
besides  what  already  emanates  from  legislation  on  accessibility  in  public  and  private 
grounds. However, in 2015, a ground-breaking judicial decision was issued by the Supreme 
Court  of  Justice,  according  to  which,  against  the  condominium’s  decision,  tenants  of  a 
housing unit located in the third floor of a building were able, given their age and limited 
mobility conditions, to install, at their own expense, a mechanical chair on the staircase.64 
This was regarded by the Court as an admissible limitation of the rights of the landlord and 
of the condominium. 

f) 

Duties to provide reasonable accommodation in respect of other grounds 

Section  2.8.f  is  not  updated  for  2022.  Please  see  Country  report  Non-discrimination 
Portugal  2022  Transposition  and  implementation  at  national  level  of  Council  Directives 
2000/43 and 2000/78, Reporting period 01.01.2021 – 01.01.2022 

64   Supreme Court of Justice, judgment of 26 January 2015, procedure No. 778/11.6TVLSB.L1.S1, available at: 
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/7551d0747921682380257df8005d76cc?O
penDocument. 

34 

 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

3  PERSONAL AND MATERIAL SCOPE  

3.1  Personal scope 

3.1.1  EU  and  non-EU  nationals  (Recital  13  and  Article  3(2),  Directive  2000/43 

and Recital 12 and Article 3(2), Directive 2000/78) 

In Portugal, there are no residence or citizenship/nationality requirements for protection 
under  the  relevant  national  laws  transposing  the  directives.  Everyone  benefits  from  the 
protection  of  the  anti-discrimination  laws.  That  means  that  irregular  migrants  have  the 
right not to be discriminated against. Furthermore, discrimination based on nationality is 
specifically prohibited in labour law (Article 24(1) of the Labour Code) and, in general, in 
Article 1 of Law 93/2017.  

3.1.2  Natural and legal persons (Recital 16, Directive 2000/43) 

a) 

Protection against discrimination 

In  Portugal,  the  personal  scope  of  anti-discrimination  law  covers  both  natural  and  legal 
persons for the purpose of protection against discrimination. 

According  to  Article  12(2)  of  the  Constitution,  legal  persons  have  the  rights  and  duties 
compatible with their nature, including personal rights.  

Law  93/2017,  which  establishes  the  legal  regime  for  the  prevention,  prohibition  and 
combating of discrimination on the grounds of race/ethnic origin, nationality, ancestry and 
territory of origin, applies to natural and legal persons (Article 2(1)). 

The  Portuguese  Criminal  Code  also  protects  persons  or  ‘groups  of  persons’,  therefore 
including the protection of such groups in the form of legal persons (Article 240). 

Other legislation, given its nature, applies only to natural persons such as workers (Labour 
Code, Article 23) and persons with disability and aggravated health risk (Article 1 of Law 
46/2006). 

Recently,  Law  75/2021,  which  strengthens  access  to  credit  and  insurance  contracts  by 
people who have overcome or mitigated situations of aggravated health risk or disability, 
aims to protect only natural persons (Article 15 and 15-A of Law 72/2008 (through Articles 
5 and 6 of Law 75/2021, that amended Law 72/2008)). 

The national provisions comply with the directives. 

b) 

Liability for discrimination 

In Portugal, the personal scope of anti-discrimination law covers natural and legal persons 
for the purpose of liability for discrimination. 

Law  93/2017  provides  that  both  natural  and  legal  persons  are  liable  in  the  case  of 
discrimination  by  action  or  omission  (Article  15(1)).  Similar  reasoning  applies  to  the 
prohibition  of  discrimination  on  the  grounds  of  disability  contained  in  Law  46/2006 
(Article 2(1)). However, Article 9 of Law 46/2006 establishes different sanctions for natural 
persons and for legal persons. Article 4(1) of Law 75/2021, which amended Law 46/2006, 
also maintains the same legal option. 

The Labour Code prohibits ‘employers’ from discriminating. This applies to natural and legal 
persons for the purpose of liability for discrimination [Articles 554(1) and (2)(4)]. 

35 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

An employer’s customers cannot be held liable under the scope of  the equality and non-
discrimination provisions; the employer can be held liable only if they have a special duty 
of care in relation to the behaviour of the customers. 

However,  there  are  exceptions  specified  by  law.  One  such  exception  is  set  out  by 
Article 11(1) of the Criminal Code, which states that  only natural persons are subject to 
criminal  liability.  However,  even  in  criminal  law,  there  are  some  exceptions  to  the 
exception, according to Article 11(2) of the same Code. One example is the case of hate 
crime, which is a crime that involves discrimination on the grounds of race, colour, ethnic 
or  national  origin,  ancestry,  religion,  gender,  sexual  orientation,  gender  identity  and 
physical or mental disability, as set out in Article 240(2) of the Criminal Code. 

3.1.3  Private and public sector including public bodies (Article 3(1)) 

a) 

Protection against discrimination 

In Portugal, the personal scope of national anti-discrimination law covers the private and 
public sectors, including public bodies, for the purpose of protection against discrimination.  

The  equality  and  non-discrimination  provisions  of  the  Labour  Code  apply  to  all  fields  of 
private  employment  (Articles  23-32  of  the  Labour  Code),  as  well  as  to  public  sector 
employees  (Article  4(1)(c),  (d)  and  (e)  of  Law  35/2014).  Article  11  of  the  Labour  Code 
extends  the  protection  against  discrimination  to  economically  dependent  workers  (self-
employed workers who are economically dependent). 

Anti-discrimination provisions on the grounds covered by the directives are also applicable 
to statutory offices (Articles 17(1) and 49 of Decree-Law 133/2013).65  

In  addition,  provisions  of  the  Criminal  Code  (Article  240)  and  provisions  of  Law  9/2017 
(Article 2(1))  and  Law  46/2006  (Article  1)  apply  to  every  person,  regardless  of  the  fact 
that they are employed or in any way linked to the private or public sectors. 

The national provisions comply with the directives. 

b) 

Liability for discrimination 

In Portugal, the personal scope of anti-discrimination law covers both the private and public 
sectors, including public bodies, for the purpose of liability for discrimination. 

Law 93/2017 is binding on all public or private persons (Article 2(1)), and Article 2(1) of 
Law 46/2006 states explicitly that it is binding on both public and private sectors. 

Article 15 of Law 93/2017 refers further to the liability of the public and private sectors. 

Article 9(1) of Law 46/2006 refers to the liability of the private sector, and Article 9(2) of 
Law 46/2006 also refers to the public sector. Law 75/2021, which strengthens access to 
credit  and  insurance  contracts  by  people  who  have  overcome  or  mitigated  situations  of 
aggravated health risk or disability, also potentially applies to both sectors, although no 
public credit and insurance companies now exist in Portugal. 

The public sector is liable for equality and non-discrimination  on the  same terms as the 
private sector (Article 4(1)(c) and (e) of Law 35/2014, which approves the General Regime 

65   Decree-Law 133/2013, 3 October 2013, Diário da República, Série I-A, No. 191, 3 October 2013, pp. 5998-

6002. 

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Country report - Non-discrimination – Portugal – 2023 

for  Contract  Work  for  the  Public  Sector),66  and  the  private  sector  is  liable  according  to 
Articles 23 to 32 of the Labour Code. 

Article 17(1) of the New Regime of the Public Business Sector of the State approved by 
Decree-law  133/2013  establishes  that  the  legal  regime  of  individual  work  contracts  is 
applicable to the workers of public companies, extending to them the protection ensured 
by the Labour Code. 

Finally, regarding criminal liability, Article 11(2) of the Criminal Code establishes that ‘legal 
persons  and  similar  entities,  with  the  exception  of  the  State,  legal  persons  exercising 
prerogatives of public power, and organisations under public international law’ are liable. 
Therefore public companies may be liable once they act in the civil and commercial realms. 

3.2  Material scope 

3.2.1  Conditions for access to employment, to self-employment or to occupation, 
including  selection  criteria,  recruitment  conditions  and  promotion, 
whatever  the  branch  of  activity  and  at  all  levels  of  the  professional 
hierarchy (Article 3(1)(a)) 

In Portugal, national legislation prohibits discrimination in relation to: conditions for access 
to  employment,  to  self-employment  or  to  occupation,  including  selection  criteria, 
recruitment conditions and promotion, whatever the branch of activity and at all levels of 
the professional hierarchy for the five grounds in both the private and public sectors, as 
described in the directives. 

Article  24(1)  of  the  Labour  Code  guarantees  all  workers  the  same  opportunities  and 
benefits from equal treatment in terms of access to employment and promotion. As such, 
neither applicants nor workers should be privileged or harmed on the grounds of ancestry, 
gender,  race,  colour,  language,  country  of  origin,  religion,  political  or  ideological 
convictions,  education,  economic  situation,  social  condition,  gender  identity  and  sexual 
orientation,  civil  status,  family  situation,  genetic  patrimony,  reduced  capacity  to  work, 
disability or chronic disease, nationality or membership of a trade union. According to this 
provision, discrimination on the grounds of gender identity is explicitly prohibited. Gender 
expression and sex characteristics are not explicitly mentioned. However, this is a general 
clause founded on a large and non-exhaustive list of protected grounds, therefore these 
factors should also implicitly be included into its scope of application.67 

According to Article 24(2) of the Labour Code, which also applies to the public sector, ‘the 
right to equal opportunities and treatment in access to employment, vocational training, 
promotion and working conditions’ encompasses: 

- 

- 

- 

selection criteria and recruitment conditions, whatever the branch of activity and at 
all levels of the professional hierarchy; 
access to all types and  to all levels of  vocational guidance, vocational training and 
retraining, including practical work experience; 
pay  and  other  pecuniary  payments,  promotions  to  all  hierarchical  levels  and  the 
criteria used in the selection of employees to be dismissed; and 

66   Law 35/2014, establishing the regime for employment relations in public services, 20 June 2014, entered 

into force on 1 August 2014 (last amended by Law 73/2017, 16 August 2017) available at: 
https://dre.pt/application/conteudo/108001409.  

67   There is a generous interpretation from courts and doctrine of the general constitutional clause of non-
discrimination, as well as of other non-discrimination clauses, which means that other discriminatory 
grounds, even if not explicitly mentioned, should be protected. There has also been some legislation on this 
issue (mostly in the education field) which means that gender expression and sex characteristics already 
have some standing in Portuguese law. 

37 

 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

- 

membership of, or involvement in, an organisation of workers or employers, or any 
organisation whose members carry out a particular profession, including the benefits 
provided by it. 

Articles 85 to 88 of the Labour Code refer to workers who have a disability or suffer from 
a  chronic  disease  or  cancer.  With  the  aim  of  applying  the  principle  of  equal  treatment, 
Article 85(1) states that such workers will enjoy all the same rights and be subject to all 
the same duties as  other  workers as regards  access to  employment  and job promotion, 
except to the extent that their disability renders them unable to exercise these. 

The law does not lay down  criteria for determining when a person is  unable to exercise 
such  rights  and  duties.  The  decision  is  first  to  be  taken  by  the  employer,  but  it  can  be 
verified  by  the  Authority  for  Working  Conditions  and  by  the  labour  courts,  which  can 
ultimately decide whether or not the person really is incapable. As far as positive action is 
concerned, Article 85(2) of the Labour Code stipulates that the Portuguese state will create 
incentives for hiring persons with disabilities or chronic diseases.  

Law 46/2006, which prohibits and punishes discrimination based on disability and on a pre-
existing risk to health, forbids all discriminatory practices that prevent, or limit access to, 
the exercise of an economic activity (Article 4(b)). Article 5 of the Law complements the 
provisions  of  the  Labour  Code  and  states  that  the  following  constitute  discriminatory 
practices against persons with disabilities:  

- 

- 

the adoption, either directly by an employer or through instructions given to workers 
or job centres, of measures or criteria which may make the recruitment of employees 
and the termination of a work contract conditional upon factors of a physical, sensory 
or mental nature; and  
the  production  or  publication  of  job  advertisements  or  any  other  kind  of  publicity 
connected  to  the  pre-selection  or  recruitment  of  workers  which  may  directly  or 
indirectly  contain  any  specification  based  on  discriminatory  factors  on  the  basis  of 
disability. 

Law 3/2011, of 15 February, which establishes the general framework for the protection 
of  the  self-employed  as  regards  the  prohibition  of  discrimination  in  access  to  and  the 
development of independent work, forbids any discrimination in access to and the exercise 
of  self-employment. The purpose of this statute is to lay down a general framework for 
combating discrimination on the grounds of race, ethnic origin, religion or belief, disability, 
age, sexual orientation and sex. The statute defines independent work in accordance with 
Directive  2010/41/EU,  in  Article  2(2),  as  a  professional  activity  developed  outside  an 
employment  contract  or  a  legally  equivalent  situation.  Article  5(1)  of  Law  3/2011 
establishes that no-one can be subjected to different treatment in access to and during the 
development of self-employment, due to a discriminatory ground. This protection includes 
direct and indirect discrimination and discriminatory harassment (Article 5(2), (3), (5) and 
(6)) and covers the access to self-employment (including advertisements, selection criteria 
and the affiliation of the worker with professional associations), and the development of 
independent work (including pay, access to vocational training and the conditions for the 
termination of the contract) – Article 3(2) and (3), and Article 4. 

Law 3/2011 refers to ‘any ground of discrimination’, so it should be implicitly understood 
to include gender expression/sex characteristics and gender identity. 

38 

 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

3.2.2  Employment  and  working  conditions,  including  pay  and  dismissals 

(Article 3(1)(c)) 

In  Portugal,  national  legislation  prohibits  discrimination  in  working  conditions,  including 
pay and dismissals, for all five grounds and for both private and public employment. 

Protection against discrimination relating to working conditions is covered by Articles 23(1) 
and 24(1) of the Labour Code. According to this provision, discrimination on the grounds 
of  gender  identity  is  explicitly  prohibited.  Gender  expression  and  sex  characteristics  are 
not explicitly mentioned. However, this is a general clause founded on a large and non-
exhaustive  list  of  protected  grounds,  therefore  these  factors  should  also  implicitly  be 
included in its scope of application. 

The protection covers employment and working conditions, including pay and dismissal, 
and contractual conditions of employment, as well as the conditions in which work is, or is 
expected to be, carried out.  

Articles 85 to 88 of the Labour Code refer to workers who have a disability or suffer from 
a  chronic  disease  or  cancer.  With  the  aim  of  applying  the  principle  of  equal  treatment, 
Article 85(1) states that these workers will enjoy all the same rights and be subject to all 
the same duties as other workers as regards working conditions, except to the extent that 
their disability renders them unable to exercise these. The law does not lay down criteria 
for determining when a person is unable to exercise such rights and duties. The decision 
is first to be taken by the employer, but it can be verified by ACT and by the labour courts, 
which can ultimately decide whether or not the person really is incapable. As far as positive 
action is concerned, Article 85(2) of the Labour Code states that the Portuguese state will 
create incentives for hiring persons with disabilities or chronic diseases.  

3.2.3  Access  to  all  types  and  to  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including  practical 
work experience (Article 3(1)(b)) 

In Portugal, national legislation prohibits discrimination in vocational training outside the 
employment  relationship,  such  as  adult  lifelong  learning  courses  or  vocational  training 
provided by technical schools or universities. 

National  law  on  discrimination  includes  access  to  vocational  guidance  and  vocational 
training,  advanced  vocational  training  and  retraining  as  defined  and  formulated  in  the 
directives. 

Article  24(1)  of  the  Labour  Code  guarantees  that  all  workers  are  to  have  the  same 
opportunities and benefit from equal treatment in terms of training. Article 24(2)(b) of the 
Labour  Code  refers  to  the  same  rights  in  respect  of  ‘guidance,  training  and  vocational 
retraining  at  any  level,  including  the  acquisition  of  practical  experience’.  It  prohibits 
discrimination in vocational guidance and vocational training, advanced vocational training 
and  retraining  working  conditions  for  all  five  grounds  and  for  both  private  and  public 
employment. According to that provision, discrimination on the grounds of gender identity 
is  explicitly  prohibited.  Gender  expression  and  sex  characteristics  are  not  explicitly 
mentioned. However, this is a general clause founded on a large and non-exhaustive list 
of protected grounds, therefore these factors should also implicitly be included in its scope 
of application. 

Article  85  of  the  Labour  Code  grants  equal  treatment  to  workers  with  disabilities  in 
vocational training, but no specific measures are provided for. Article 86 refers to positive 
measures on vocational training to benefit workers with disabilities. 

39 

 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Article 127(1)(d) of the Labour Code establishes that employers must provide vocational 
training to workers according to their qualifications, and Article 130(d) of the Code states 
that  one  of  the  objectives  of  vocational  training  must  be  to  promote  the  vocational 
rehabilitation of persons with disabilities, especially those whose disability results from a 
work-related injury. 

Furthermore,  the  state  must  support  self-employment,  teleworking,  part-time  work  and 
working from home. 

Article 6(2) of the Labour Code states:  

‘The state should guarantee, in particular, the access of citizens to vocational training 
and continual updating of knowledge and skills from when they start work and should 
also support the operation of the training system through public funds.’ 

These rules also apply to the public sector. 

3.2.4  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) 

In Portugal, national legislation prohibits discrimination in relation to: membership of and 
involvement in workers’ or employers’ organisations or any organisation whose members 
carry on a particular profession, including the benefits provided for by such organisations, 
for  all  five  grounds  and  both  for  private  and  public  employment.  This  is  established  in 
Article 24(2)(d) of the  Labour Code that links this prohibition to the grounds covered in 
Article 24(1). According to this provision, discrimination on the grounds of gender identity 
is  explicitly  prohibited.  Gender  expression  and  sex  characteristics  are  not  explicitly 
mentioned. However, this is a general clause founded on a large and non-exhaustive list 
of protected grounds, therefore these factors should also implicitly be included in its scope 
of application. 

Additionally, trade unions are not allowed to discriminate against their own members or 
with regard to applications for membership (Articles 441 and 444(3) of the Labour Code). 
No specific grounds for discrimination are mentioned in these provisions, therefore gender 
identity/expression or sex characteristics should be included in this general clause. 

3.2.5  Social protection, including social security and healthcare (Article 3(1)(e) 

Directive 2000/43) 

In Portugal, national legislation prohibits discrimination in social protection, including social 
security and healthcare, as formulated in the Racial Equality Directive. 

The Constitution grants protection against all grounds of discrimination in general, not only 
in Article 13 but also in Article 26(1).  Article 13 covers the following grounds: ancestry, 
gender,  race,  language,  territory  of  origin,  religion,  political  or  ideological  beliefs, 
education,  economic  situation,  social  circumstances  and  sexual  orientation.  Disability, 
gender identity/expression and sex characteristics are not mentioned.  However, this is a 
general clause founded on a large and non-exhaustive list of protected grounds, therefore 
these factors should also implicitly be included in its scope of application. 

Furthermore, the Constitution covers social security explicitly in Article 63(1) and (2), and 
healthcare in Article 64. 

According to Article 63 on social security and solidarity, everyone has the right to social 
security, and the state is charged with organising, coordinating and subsidising a unified 

40 

 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

and decentralised social security system with the participation of the trade unions, other 
organisations  that  represent  workers  and  associations  that  represent  the  other 
beneficiaries. 

Article 64 on health states: ‘everyone has the right to the protection of health and the duty 
to defend and promote  health’. According to Article 64(2), the right to the protection of 
health will be fulfilled ‘by means of a universal and general national health service which, 
with particular regard to the economic and social conditions of the citizens who use it, shall 
tend to be free of charge’. 

Law 93/2017 prohibits discrimination on the grounds of race or ethnic origin, nationality, 
ancestry  and  territory  of  origin  within  the  scope  of  social  protection,  including  in  social 
security and healthcare (Articles 1 and 2(1)(a)). 

Particularly Law 38/2018 of 7 August, which  regulates the right to  self-determination of 
gender  identity  and  gender  expression  and  protection  of  one’s  sexual  characteristics68 
states  that  ‘1.  The  State  shall  guarantee,  to  those  who  request  it,  the  existence  of  and 
access to reference services or specialised units within the National Health Service, namely 
for treatments and surgical, pharmacological or other interventions aimed at matching the 
body with its gender identity’ (Article 11). 

The social security system must protect individuals in illness and old age and if they are 
widowed or orphaned or with disabilities, as well as if they are unemployed or in any other 
situation that entails a lack of or reduction in means of subsistence or the ability to work. 

The Labour Code and the law in general do not contain any exceptions to the provisions 
regarding social protection. The principle is that discrimination is not allowed in these areas 
(Articles 13(2), 26(1) and 59(1) of the Constitution). 

Law 4/200769 (the Basic  Law on the Social Security System) establishes in Article 7 the 
principle of equal treatment that prohibits any kind of discrimination, although it only gives 
examples involving sex and nationality. Concerning nationality, it is admissible to impose 
conditions of residence and reciprocity. Gender identity/expression and sex characteristics 
are  not  mentioned.  However,  this  is  a  general  clause  founded  on  a  large  and  non-
exhaustive  list  of  protected  grounds,  therefore  these  factors  should  also  implicitly  be 
included in its scope of application. 

Article 30 of Law 38/2004,70 which defines the general framework of the legal regime with 
regard to the prevention of disability and the training, rehabilitation and participation of 
persons  with  disabilities,  provides  that  the  state  will  adopt  the  necessary  and  specific 
measures  to  ensure  the  social  protection  of  persons  with  disabilities,  through  cash  or 
benefits in kind, with the aim of achieving personal autonomy and adequate professional 
and social integration. 

Portuguese  national  law  goes  beyond  the  directives,  because  there  is  a  constitutional 
principle  of  equivalence  of  rights  (Article  15  of  the  Constitution)  between  nationals  and 
non-nationals.  

In  respect  of  social  housing,  the  principle  of  non-discrimination  derives  explicitly  from 
Article 2(1) of the Basic Law on Housing,71 which applies to all forms of housing provision. 
According to this provision, discrimination on the grounds of gender is explicitly prohibited. 

68   Available at: https://dre.pt/dre/detalhe/lei/38-2018-115933863. 
69   Law 4/2007, Basic Law on the Social Security System (Aprova as bases gerais do sistema de segurança 
social), 16 January 2007, available at: www4.seg-social.pt/documents/10152/18664/LEI_4_2007. 

70   Law 38/2004, defining the general framework of the legal regime regarding disability prevention (Define as 

bases gerais do regime jurídico da prevenção, habilitação, reabilitação e participação da pessoa com 
deficiência), available at: https://dre.pt/application/file/480649. 

71   Law 83/2019, 3 September 2019, available at: https://dre.pt/home/-/dre/124392055/details/maximized. 

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Country report - Non-discrimination – Portugal – 2023 

Gender identity/expression and sex characteristics are not explicitly mentioned, but they 
should  logically  be  covered  due  to  the  constitutional  principle  of  equality  and  non-
discrimination – Article 13 (although there is no case law to support this interpretation). 

Specifically, Law 81/2014 of 19 December 201472 (Law on Social Housing) does not provide 
a non-discrimination clause but points to administrative selection procedures in which the 
selection criteria should be non-discriminatory (cf. Article 6 of the Code of Administrative 
Procedure). However, Article 11 of Law 81/2014 defines as preferential criteria for social 
housing the following: single-parent families, minors, persons with disabilities, those aged 
65 or over and victims of domestic violence. 

a) 

Article 3(3) exception (Directive 2000/78) 

National  law  does  not  rely  on  the  exception  in  Article  3(3)  of  the  Employment  Equality 
Directive in relation to religion or belief, age, disability and sexual orientation. 

3.2.6  Social advantages (Article 3(1)(f) Directive 2000/43) 

In Portugal, national legislation prohibits discrimination in social advantages as formulated 
in the Racial Equality Directive. 

Discrimination is not permitted in relation to social advantages (see,  first and foremost, 
Article  13  of  the  Constitution  concerning  the  principle  of  equality,  which  also  applies  to 
social advantages, although judicial interpretation is required) in respect of the following 
grounds:  ancestry,  gender,  race,  language,  territory  of  origin,  religion,  political  or 
ideological  beliefs,  education,  economic  situation,  social  circumstances  and  sexual 
orientation.  Disability,  gender  identity/expression  and  sex  characteristics  are  not 
mentioned. 

However, this is a general clause founded on a large and non-exhaustive list of protected 
grounds,  therefore  these  factors  should  also  implicitly  be  included  in  its  scope  of 
application. 

The Basic Law  on the Social Security System (Law 4/2007) sets out a system of citizen 
protection (Article 26 and subsequent articles), which includes social advantages. 

Law  4/2007  establishes  in  Article  7  the  principle  of  equal  treatment  in  access  to  social 
security and social advantages in general, and forbids any kind of discrimination, including 
on the grounds of sex and the nationality of beneficiaries. Due to the general principle of 
non-discrimination  included  in  Article  13(2)  of  the  Constitution,  the  grounds  of  age, 
disability, religion or belief and sexual orientation, despite not being mentioned explicitly 
in Article 7 of Law 4/2007, are also implicitly covered. Gender identity/expression and sex 
characteristics  are  not  mentioned.  However,  Article  7  is  a  general  clause  founded  on  a 
large  and  non-exhaustive  list  of  protected  grounds,  therefore  these  factors  should  also 
implicitly be included in its scope of application. 

Decree-Law 4/2015, which establishes the Code of Administrative Procedure,73 includes in 
Article 6 the principle of equality forbidding any discrimination by reasons of ancestry, sex, 
race, territory of origin, religion,  political or ideological convictions, education, economic 
situation,  social  condition  or  sexual  orientation.  Therefore,  any  social  advantages  of  an 
should  also  be  non-discriminatory.  Disability,  gender 
administrative  nature 
identity/expression and sex characteristics are not mentioned. 

72   Law 81/2014, 19 December 2014 (last amended by Law 32/2016, 24 August 2016), available at: 

https://dre.pt/web/guest/pesquisa/-/search/75194221/details/maximized. 

73   Decree-Law 4/2015, 7 January 2015, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?ficha=101&artigo_id=&nid=2248&pagina=2&tabela
=leis&nversao=&so_miolo. 

42 

 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Law  93/2017  which  establishes  the  legal  regime  for  the  prevention,  prohibition  and 
combating of discrimination on the grounds of race or ethnic origin, nationality, ancestry 
and territory of origin, expressly includes the field of social advantages (Article 2(1)(b)). 

In Portugal, the lack of a definition of social advantages does not raise particular problems. 

3.2.7  Education (Article 3(1)(g) Directive 2000/43) 

In Portugal, national legislation prohibits discrimination in education as formulated in the 
Racial Equality Directive. 

The  general  principles  of  equality  and  non-discrimination  enshrined  in  Article  13  of  the 
Constitution  are  applicable  to  education.  Consequently,  no-one  may  be  privileged, 
favoured,  prejudiced,  deprived  of  any  right  or  exempted  from  any  duty  on  the  basis  of 
ancestry, gender, race, language, territory of origin, religion, political or ideological beliefs, 
education, economic situation, social circumstances or sexual orientation. 

Disability, gender identity/expression and sex characteristics are not mentioned. However, 
Article  13  is  a  general  clause  founded  on  a  large  and  non-exhaustive  list  of  protected 
grounds,  therefore  these  factors  should  also  implicitly  be  included  in  its  scope  of 
application. 

As for disability, Article 71(1) of the Constitution establishes that people with disability fully 
enjoy the rights and perform the duties, in accordance with their incapacity, and there are 
no doubts that this ground benefits from the provision of Article 13. 

In addition, the Constitution refers to the right to education in Chapter III on cultural rights 
and duties.  

Article 74(1) of the Constitution states that everyone has the right to education, and that 
the  right  to  equal  opportunities  and  to  access  to  and  success  in  schooling  will  be 
guaranteed. Article 74(2) provides that:  

‘in implementing the education policy, the state shall be charged with: 

a. 
b. 
c. 
d. 

e. 
f. 

ensuring universal, compulsory and free basic education; 
creating a public, and developing the general, pre-school system; 
guaranteeing permanent education and eliminating illiteracy; 
in  accordance  with  his  capabilities,  guaranteeing  every  citizen  access  to  the 
highest levels of education, scientific research and artistic creation; 
progressively making all levels of education free of charge; 
inserting  schools  into  the  communities  they  serve  and  establishing  links 
between education and economic, social and cultural activities.’ 

Furthermore, Article 2 of Law 46/86, (Basic Law on the Education System),74 as amended 
by  Law  115/97,  Law  49/2005,  and  Law  85/2009,  grants  all  individuals  the  right  to 
education  and  culture  in  accordance  with  the  Constitution,  which  means  that  all  five 
grounds and also gender identity/expression and sex characteristics are covered, though 
never explicitly mentioned in the law. 

Anti-discrimination  law  is  applicable  to  vocational  training  in  technical  schools  and 
universities,  and  also  covers  lifelong  learning  courses.  Besides  establishing  a  basic 
educational policy, Law 46/86 declares that education is universal, compulsory and free of 
charge for all children. Basic education lasts for nine years. 

74   Law 46/86 (Basic Law on the Education System) 14 October 1986. The consolidated version of this law, as 
amended by Law 115/97 of 19 September 1997, was republished as Law 49/2005 on 30 August 2005. 

43 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Concerning religion, Article 24 of Law 16/2001 (Law on Religious Freedom) provides the 
possibility  and  the  conditions  for  religious  teaching  in  public  educational  institutions. 
Although discrimination against students is not explicitly prohibited in this provision (only 
generally in Article 2), it should be considered to be implicitly included. 

Regarding  sexual  orientation,  Article  2(f)  and  2(l)  of  Law  60/2009  (Regime  for  the 
implementation  of  sex  education  in  schools),75  which  establishes  a  framework  for  sex 
education in schools, aim to promote education against discrimination on the grounds of 
sexual orientation, but this is limited to the obligation for schools to teach the prohibition 
of  discrimination  on  such  grounds.  It  applies  to  all  public  establishments  at  basic  and 
secondary  level,  but  not  to  universities.  It  also  applies  to  the  private  and  cooperative 
establishments  that  have  an  association  contract  with  the  state  and  therefore  receive 
financing and benefits from it. 

Article 7 of Law 51/201276 (Statute governing students and school ethics) establishes that 
no student may be discriminated against by the school community for reasons related to 
their  sexual  orientation  and  gender  identity  (and  more  generally,  according  to 
Article 7(1)(a)  for  reasons  related  to  ethnic  origin,  health,  sex,  sexual  orientation,  age, 
gender identity, economic, cultural or social condition or political, ideological, philosophical 
or  religious  convictions).  Gender  expression  and  sex  characteristics  are  not  mentioned, 
judicial  interpretation  is  required.  It  applies  to  all  public  establishments  at  basic  and 
secondary level. 

More recently, Law 38/2018 of 7 August, which regulates the right to self-determination 
of  gender  identity  and  gender  expression  and  protection  of  one’s  sexual  characteristics, 
defined that schools, both public and private, should ‘promote’ the exercise of such rights 
(Article  12).77  This  raised  several  discussions  in  Portugal  on  the  potentially  ideological 
programming of education and, in fine, the Constitutional Court ended up considering that 
that  norm  was  unconstitutional,  but  only  given  its  indeterminacy  and  violation  of  the 
legislative  reserved  competencies  of  Parliament,  therefore  the  section  of  the  law  is 
ineffective and so far no law has been enacted to substitute it.78 Also as a consequence, 
Ordinance  7247/2019  –  which  established  administrative  measures  to  implement  the 
aforementioned  Article  12  –  was  cancelled.79  Among  those  measures,  which  are  now 
inapplicable,  are  the  use  of  a  self-attributed  name  and  gender  and  the  use  of  preferred 
clothing and toilets. This means that, at the moment, despite the title of the Law 38/2018 
of 7 August, most of the rules on education set out in this law are inapplicable, except for 
Article 12(2) on education (it is however still relevant in other areas such as registry, health 
and procedural rights in cases of discrimination). 

According to the report of the Educational Project LGBTI 2019 by the Ex Aequo Network, 
‘About  79.2 %  of  young  people  have  witnessed  at  least  once,  situations  of  mockery  or 
discrimination based on sexual orientation, gender identity and/or sexual characteristics, 
compared with 57 % of teachers’.80 

With regard to race or ethnic origin, Law 93/2017, which establishes the legal regime for 
the  prevention,  prohibition  and  combating  of  discrimination  on  the  grounds  of  race  or 
ethnic origin, nationality, ancestry and territory of origin, also covers the field of education 
(Article 2 (1)(c)). According to Article 4(2)(f) and (g) of the statute, ‘the denial or limitation 
of access to educational institutions, public or private’, and ‘the establishment of classes 

75   Law 60/2009, 6 August 2009, establishing a framework for sex education in schools (Estabelece o regime de 

aplicação da educação sexual em meio escolar), available at: https://dre.pt/pesquisa/-
/search/494016/details/maximized. 

76   Law 51/2012, 5 September 2012, available at: https://dre.pt/pesquisa/-/search/174840/details/maximized.  
77   Available at: https://dre.pt/dre/detalhe/lei/38-2018-115933863. 
78   Decision No. 474/2021, available at: https://files.dre.pt/1s/2021/07/14200/0002000050.pdf. 
79   Available at: https://dre.pt/dre/detalhe/despacho/7247-2019-123962165. 
80   Report available at: https://www.cig.gov.pt/wp-content/uploads/2021/02/Relatorio-PE-LGBTI-2019.pdf. 

44 

 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

or the adoption of other internal organisational measures in institutions of public or private 
education, according to discriminatory criteria’ are considered as discriminatory practices. 

Concerning pupils with disabilities, Articles 16, 17 and 18 of the Basic Law on the Education 
System refer to the right of persons with disabilities to special education, and Article 20 
relates to the education of adults. Special conditions for access to education and special 
learning  methods  are  stipulated  for  students  with  disabilities.  Provisions  cover  both 
‘education’ and ‘vocational training’. 

Article 5(1) of Decree-Law 54/2018  of 6 July, which establishes the legal framework for 
inclusive education, states that each school should recognise the diversity of its students 
and  identify  ways  of  dealing  with  that,  adapting  the  teaching  processes  to  the 
characteristics and individual conditions of each student and promoting equality and non-
discrimination in access to the curriculum and to learning. Instead of categorising students 
with ‘special educational needs’, or creating a special legal framework based on diagnoses 
of  learning  difficulties,  the  Legal  Framework  for  Inclusive  Education  aims  to  respond  to 
students’  different  needs.  It  focuses  on  educational  responses  and  mobilising  health, 
employment, vocational training and social security resources, in complementary fashion 
and whenever considered necessary. 

Finally, Article 4(h) and 4(i) of Law 46/2006 states that the denial or limitation of access 
to public or private educational institutions or to any means of compensation/appropriate 
support  for  the  specific  needs  of  students  with  disabilities  constitutes  a  discriminatory 
practice; in addition, the establishment, according to discriminatory criteria, of classes or 
the  adoption  of  other  internal  organisational  measures  in  public  or  private  educational 
institutions  are  deemed  as  discriminatory  practices,  unless  they  are  justified  under  the 
objectives referred to in Article 2. 

In  Portugal,  the  general  approach  to  education  for  pupils  with  disabilities  gives  rise  to 
practical  difficulties  due  to  the  lack  of  specialised  teachers  and  the  unavailability  of 
accessible  classrooms.  However,  as  the  Ministry  of  Education  has  not  made  available  a 
database on pupils with disabilities, the extent of such difficulties cannot be fully confirmed. 

To the knowledge of the authors of this report, there is no case law on this topic.  

a) 

Trends and patterns regarding Roma pupils 

In  Portugal,  there  are  some  societal  patterns  in  education  regarding  Roma  pupils.  As 
regards  education,  differences  remain  between  Roma  and  the  general  population; 
nonetheless, evolution has occurred in some respects. 

The  school  drop-out  rate  among  Roma  children  used  to  be  very  high.  Very  few  Roma 
children  pursued  their  studies  beyond  the  first  four  years  of  school  and  there  were  few 
Roma students in higher education. Roma girls were particularly likely to leave school at a 
very early age because of cultural reasons and traditions.81  

Until  the  start  of  the  implementation  of  the  National  Roma  Communities  Integration 
Strategy 2013-2020 it was reported that Roma students generally left school earlier than 
other pupils (between the ages of 10 and 12), and did not complete the nine-year period 
of compulsory education (up to ninth grade). Many Roma children left school because of 

81   See Guedes, M., Magano, O. and Candeias, P. (2014), Estudo Nacional sobre as Comunidades Ciganas 

(National Study on the Roma Communities), HCM, pp. 92 ff, 205 ff, available at: 
www.acm.gov.pt/documents/10181/52642/estudonacionalComunidades.pdf/f4aa9b13-797d-40bb-a3b3-
1c4011b05760. According to this study, in which 1 599 people were surveyed, 1/3 of Roma respondents 
had never attended school or did not go beyond the 1st cycle of basic education, and only 2.8 % had a 
secondary and/or higher education diploma. In contrast, 19.2 % of the Portuguese population had 
secondary education and 16.5 % had higher education (Pordata, 2014). 

45 

 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

academic failure and having to  repeat  school  years. The majority  of  Roma  children  who 
dropped out were girls. 

Some of the reasons for the high drop-out rate among Roma students were: 

- 
- 
- 

- 

absenteeism; 
lack of parental interest; 
failure  of  schools  to  adequately  cope  with  Roma  culture  and  the  social  needs  and 
values of Roma children; and 
difficulties experienced by teachers in understanding the children’s situation.82 

Some problems have been encountered between teachers and Roma students in schools 
and, to address them, some initiatives have been taken to encourage school attendance 
by Roma children. One example is the creation of posts for socio-cultural mediators (some 
of Roma origin), who act as liaison points between families and schools. The Portuguese 
authorities have said that the school attendance rate for Roma children has risen since the 
creation of these posts. In 2018, there were 155 mediators.83  

As  the  European  Union  has  asked  Member  States  to  prepare  national  strategies  for  the 
integration  of  Roma  communities,  with  a  view  to  fighting  exclusion  and  acting  in 
accordance with European values and the economic model adopted in the European Union, 
the  Portuguese  Government  approved  the  National  Roma  Communities  Integration 
Strategy 2013-2020. The strategy, which was adopted by the Resolution of the Council of 
Ministers 25/2013 of 27 March 2013 (in force since 17 April 2013), supports the idea that 
‘Despite  recent  progresses  [sic],  additional  efforts  still  need  to  be  undertaken  in  what 
concerns  Roma  communities.’84  Since  the  implementation  of  the  strategy,  the  need  to 
introduce  changes,  both  to  the  strategy’s  definition  –  particularly  in  relation  to  the 
clarification  and  implementation  of  measures  –  and  in  the  identification  of  priority 
intervention  areas,  especially  gender  equality,  knowledge  of  Roma  people  and  their 
participation in the implementation of the strategy, has been evident. 

The  Government  has  therefore  decided  to  review  the  strategy  in  order  to  adjust  its 
objectives and targets  and, consequently, to enhance its impact on the improvement of 
the living conditions of the people and communities involved. The priority is to improve the 
schooling,  professional  integration  and  living  conditions  of  Roma  people  in  situations  of 
social exclusion, and to recognise and boost intervention through intercultural mediation, 
improve information and knowledge and combat discrimination against Roma people. 

Therefore,  after  hearing  from  the  municipalities,  the  associations  of  Roma  communities 
and  civil  society  in  general,  the  Council  of  Ministers  adopted  Resolution  154/2018  of 
8 November 2018,85 which extends the strategy until the end of 2022.86  

The strategy underlines the fact that, according to the most recently available data, despite 
some  improvements,  discrimination,  poverty  and  social  exclusion  continue  to  affect  the 
Roma. 

82   There is a variety of literature in Portuguese on this topic. For a more recent article that summarises such 

reasons, see Maria Manuela Mendes, Olga Magano e Ana Rita Costa, ‘Ciganos portugueses: escola e 
mudança social’, Sociologia, Problemas e Práticas, 93/2020, available at: 
http://journals.openedition.org/spp/7754. 

83   See HCM (2018), Relatório de atividades 2018 (Activities Report 2018), available at: 

https://www.acm.gov.pt/documents/10181/43252/ACM+RA2018_Final+5.pdf/7291ff95-c51e-4d0a-819f-
166e07ad1db7. 

84   Portugal (2013), National Roma Communities Integration Strategy 2013-2020, p. 3, available at: 
https://www.acm.gov.pt/documents/10181/52642/ENICC_en.pdf/bc4d6288-1626-4fcd-baa0-
9feb8da7860d. 

85   Resolution 154/2018, 8 November 2018, Diário da República, Série I-A, No. 230, 29 November 2018. 
86   No evaluation on this strategy is available and Resolution 36/2023, 3 May, Diário da República, Série I, of 

3 May 2023, extended its application until the end of 2023. 

46 

 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

With regard to  education, in the academic year 2016-2017, 65 %  of Roma children and 
youth attending school received the highest level of social benefits. The school  drop-out 
rate for girls remains considerably higher than the drop-out rate for boys. 

Taking into account this scenario, the strategy aims to ensure effective access for Roma 
people to education, educational success and lifelong learning by aiming: 

- 

- 
- 
- 

to  promote  and  strengthen  the  capacity  of  cluster  and  non-cluster  schools  for  the 
integration and educational success of Roma children and young people in primary 
and secondary education; 
to promote the integration and success of Roma students in higher education; 
to strengthen the basic skills of illiterate Roma men and women; 
to train social services and child protection workers. 

As a consequence of the strategy, the situation of Roma education has improved. In 2019, 
the document Promoting the Inclusion and Educational Success of Roma Communities – 
Guide for Schools,87 was adopted to provide guidance for the future. 

In  the  academic  year  2017-2018,  the  second  edition  of  the  Operational  Programme  for 
Promoting  Education  (OPRE)  was  implemented;  it  ended  in  September  2018.  In  this 
edition,  32  scholarships  were  awarded,  and  most  of  the  programme  fellows  (25)  were 
awarded  high-level  degrees  (first  degree  or  masters).  Overall,  64 %  of  the  fellows 
concluded their studies successfully, and it is worth noting that the participation of women 
has increased to 12 %.88  

In  addition,  the  ‘School  Profile  of  Roma  Communities’,  which  presents  data  about  the 
students  from  Roma  communities  enrolled  in  the  2018/2019  school  year  in  Ministry  of 
Education public schools, shows that there has been a remarkable evolution in this area, 
albeit that some regional asymmetries (most of the educational problems are located in 
the  Lisbon  region)  should  be  noted.89  In  order  to  understand  the  scale  of  the  change 
ongoing, it helps to go back to 1997/98. In that academic year, there were 5 921 Roma 
children and young people attending primary and secondary education (there was no data 
on pre-school). The data that has been released points to an almost tripling of this number 
(22 556).90 

In 2019, the Government’s ROMA Educa programme distributed 100 scholarships for Roma 
students  to  many  secondary  schools,  including  a  monthly  grant  and  a  mentorship 
programme. In 2020 it decided to renew the programme and to award 120 scholarships to 
Roma students. In addition, other, more local projects have been implemented over the 
years, with good results.91 

87  Direção-Geral da Educação (DGE), Promoting the Inclusion and Educational Success of Roma Communities – 
Guide for Schools (Promover a inclusão e o sucesso educativo das comunidades ciganas – Guião para as 
Escolas), April 2019, available at: 
https://www.dge.mec.pt/sites/default/files/ECidadania/Educacao_Intercultural/documentos/guiao_comunida
des_ciganas.pdf.  

88   See HCM (2018), Relatório de atividades 2018 (Activities Report 2018), available at: 

https://www.acm.gov.pt/documents/10181/43252/ACM+RA2018_Final+5.pdf/7291ff95-c51e-4d0a-819f-
166e07ad1db7. 

89   Publication available at: https://www.dgeec.mec.pt/np4/1136.html#. 
90   See: https://www.publico.pt/2020/07/12/sociedade/noticia/ha-25-mil-ciganos-escolas-resultados-estao-

melhorar-1923509. 

91   See: Maria da Conceição Tomé, Anabela Carvalho, José Sousa, Dinis Saraiva, António Domingues e Maria 
Fernanda Oliveira, ‘O sucesso escolar dos alunos de etnia cigana: desafios emergentes. O caso dos alunos 
do Agrupamento de Escolas Infante D.Henrique’, Configurações [Online], 18, 2016, 
DOI, 10.4000/configuracoes.3659 and 
https://www.portugal.gov.pt/pt/gc22/comunicacao/noticia?i=governo-quer-replicar-programa-que-
erradicou-abandono-escolar-entre-ciganos. 

47 

 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

In the FRA Report Roma in 10 European Countries – Main Results, from 2021,92 Portugal 
is the country among the 10 in the EU where segregation in education for children aged 6 
to 15 is lowest (2 % in 2021), the bloc average being 52 %. Conversely, it was one of the 
countries where the number of those who felt discriminated against for being Roma when 
looking for a job increased the most (47 % in 2016 and 81 % in 2021 – EU average last 
year  was  33  %)  and  the  one  where  the  most  respondents  felt  discriminated  against  in 
accessing healthcare and where the percentage increased the most (from 5 % to 32 % in 
2021 – EU increased from 8 % to 14 %). 

Despite these advances, Roma children still, in some cases, face hostility from non-Roma 
parents,  who  have  in  the  past  pressured  school  officials  not  to  enrol  Roma  children.  In 
addition, Roma parents, given their education level and the fear that their children might 
be discriminated against, do not oppose school abandonment.93 

Clashes  between  cultural  tradition  and  school  obligations  still  exist.  In  a  case  that  was 
publicised in the press, a first-instance court decided in 2017 that a 15-year-old Roma girl 
did not necessarily need to conclude mandatory schooling, since she had acquired basic 
life competencies and was not at all motivated to remain in school.94 Some years earlier, 
the Lisbon Court of Appeal reversed a first-instance decision that had admitted the drop-
out of a Roma girl, mainly due to cultural aspects (the girl had started menstruation and 
should, from then on, stay at home). The Court of Appeal considered that, in the case of a 
conflict of rights, the right to education should prevail over cultural arrangements, and it 
ordered, as a protective measure, that the parents should undergo pedagogical training.95  

The COVID-19 pandemic has also shown that there is still a lot to be done, as it is reported 
that  less  than  50 %  of  Roma  community  members  have  access  to  the  internet  and 
computers.96  The  Digital  School  Programme  intends  to  narrow  this  gap  by  loaning 
computers to and ensuring internet access for students, with priority for those who do not 
own such technology. However, no evaluation on the level of success of this programme is 
available.97 

3.2.8  Access to and supply of goods and services that are available to the public 

(Article 3(1)(h) Directive 2000/43) 

In  Portugal,  national  legislation  prohibits  discrimination  in  access  to  and  the  supply  of 
goods and services as formulated in the Racial Equality Directive. 

Law 93/2017 is applicable to access to and supply of goods and services, including housing 
(Article  2(1)(d)).  The  provision  prohibits  discrimination  on  the  grounds  of  race/ethnic 
origin, nationality, ancestry and territory of origin. 

The  rules  against  discrimination  based  on  disability  are  also  applicable  to  access  to 
buildings  and  public  spaces  and  the  supply  of  goods  and  services,  and  are  contained  in 
Decree-Law 163/2006 of 8 August 2006, which sets out access regulations for buildings 
and public spaces, and in Law 46/2006, which prohibits and punishes discrimination based 
on disability and on a pre-existing risk to health (Article 4). 

92   Available at: https://fra.europa.eu/en/publication/2022/roma-survey-findings. 
93   See: Ana Certã, ‘Viver a Escola na Comunidade Cigana’, Factsheet OBSIG, Observatório das Comunidades 

Ciganas, ACM, I.P. 2021, available at: 
https://www.obcig.acm.gov.pt/documents/58622/1515680/ObCig+Fact+Sheets+1/01b020c9-9436-4186-
a880-d0304c3ad997. 

94   See: https://www.publico.pt/2018/09/05/sociedade/noticia/tribunal-de-fronteira-aceita-abandono-escolar-

de-rapariga-cigana-1842986. 

95   Lisbon Court of Appeal, decision of 20 March 2012, proc. 783/11.2TBBRR.L1-1, available at: 

http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/75074309b70e7a8c802579ce00464024.  

96   See: https://www.dn.pt/pais/ciganos-ensino-a-distancia-medidas-de-higiene-como-se-ate-a-comida-falta-

12091140.html. 

97   See information available at: https://escoladigital.agrupspc.pt/home-pt. 

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Country report - Non-discrimination – Portugal – 2023 

In  particular,  this  Article  establishes  an  open-ended  list  of  types  of  services  in  which 
discrimination is prohibited. These are: 

‘b) The impediment or limitation to the access and normal exercise of an economic 
activity; c) Refusal or conditioning of the sale, renting or subletting of real estate, as 
well as access to bank credit for the purchase of housing, and refusal or penalisation 
in the signing of insurance contracts; d) The refusal or impediment to the use and 
dissemination  of  sign  language;  e)  Refusal  or  limitation  of  access  to  the  built 
environment or to public places or places open to the public; f) refusal or limitation 
of access to public transport, whether by air, land or sea; g) Refusal or limitation of 
access to healthcare provided in public or private healthcare facilities; h) Refusal or 
limitation  of  access  to  educational  institutions,  public  or  private,  as  well  as  to  any 
means  of  compensation/support  appropriate  to  the  specific  needs  of  pupils  with 
disabilities; i) The constitution of classes or the adoption of other measures of internal 
organisation in public or private educational establishments according to criteria of 
discrimination on the grounds of disability, unless such criteria are justified by the 
objectives referred to in Article 2, number 2; j) The adoption of a practice or measure 
by  any  company,  entity,  body,  service,  official  or  agent  of  the  direct  or  indirect 
administration of the State, the Autonomous Regions or the local authorities, which 
conditions  or  limits  the  exercise  of  any  right;  l)  The  adoption  of  an  act  in  which, 
publicly or with the intention of wide dissemination, a natural or legal person, public 
or private, makes a statement or transmits information whereby a group of people 
are threatened, insulted or demeaned on the grounds of discrimination on the basis 
of disability; m) the adoption of measures limiting access to new technologies’. 

The other grounds of discrimination are not expressly mentioned in national law, but they 
should  logically  be  covered  due  to  the  constitutional  principle  of  equality  and  non-
discrimination – Article 13 (although there is no case law to support this interpretation). 
Disability, gender identity/expression and sex characteristics are not mentioned in Article 
13.  However,  this  is  a  general  clause  founded  on  a  large  and  non-exhaustive  list  of 
protected grounds, therefore these factors should be included in its scope of application. 

Decree-Law 4/2015, which establishes the Code of Administrative Procedure,98 includes in 
Article  6  the  principle  of  equality,  forbidding  any  discrimination  by  reasons  of  ancestry, 
sex,  race,  territory  of  origin,  religion,  religious  or  ideological  convictions,  education, 
economic situation, social condition or sexual orientation. The Code applies only to public 
services. 

a)  Distinction between goods and services available publicly or privately 

In Portugal, national law distinguishes between goods and services that are available to 
the public (e.g. in shops, restaurants and banks) and those that are available only privately 
(e.g. those restricted to members of a private association). 

For instance, Law 93/2017 is applicable to all goods and services available to the public. 
Goods and services available through private associations are excluded under the principle 
of freedom of association.  

98   Decree-Law 4/2015, 7 January 2015, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?ficha=101&artigo_id=&nid=2248&pagina=2&tabela
=leis&nversao=&so_miolo. 

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According to Decree-Law 594/74, as amended by Decree-Law 71/77,99 private associations 
have the right to restrict the supply of goods and services to their members. This means 
that  distinctions  can  be  made  on  the  basis  of  membership.  However,  membership  itself 
cannot be based on discriminatory criteria.  

3.2.9   Housing (Article 3(1)(h) Directive 2000/43) 

In  Portugal,  national  legislation  prohibits  discrimination  in  the  areas  of  housing  as 
formulated in the Racial Equality Directive. 

Discrimination related to access to housing is prohibited by Law 93/2017 (Article 2(1)(d)). 
The  provision  prohibits  discrimination  on  the  grounds  of  race/ethnic  origin,  nationality, 
ancestry and territory of origin. 

As for other grounds, Article 2(1) of the Basic Law on Housing100 establishes that all have 
a right to housing for themselves and their families, regardless of ancestry or ethnic origin, 
sex,  language,  territory  of  origin,  nationality,  religion,  belief,  political  or  ideological 
convictions,  education,  economic  situation,  gender,  sexual  orientation,  age,  disability  or 
health conditions. Gender identity/expression and sex characteristics are not mentioned, 
but they should logically be covered due to the constitutional principle of equality and non-
discrimination – Article 13 (although there is no case law to support this interpretation). 

Pursuant  to  Law  13/2019,  a  provision  was  inserted  in  the  Portuguese  Civil  Code101 
(Article 1067-A)  on non-discrimination in respect of access to a lease. According to that 
Article,  no-one  can  be  discriminated  against  on  the  grounds  of  sex,  ancestry  or  ethnic 
origin,  language,  territory  of  origin,  nationality,  religion,  belief,  political  or  ideological 
convictions,  gender,  sexual  orientation,  age  or  disability  (1).  It  concluded  that  the 
announcement  of  a  dwelling  for  lease  cannot  contain  any  restriction,  specification  or 
preference based on the discriminatory  categories mentioned above (2). Therefore, it is 
illegal for a potential landlord to refuse to conclude a lease contract  on the basis of the 
potential  tenant’s  ‘old  age’.  Gender  identity/expression  and  sex  characteristics  are  not 
mentioned,  but  they  should  logically  be  covered  due  to  the  constitutional  principle  of 
equality and non-discrimination – Article 13 (although there is no case law to support this 
interpretation). 

With regard to housing for persons with disabilities, Law 38/2004 of 18 August,102 which 
defines the general legal basis for the prevention of the causes of disability, and for the 
training, rehabilitation and participation of persons with disabilities, states that the state 
will adopt specific measures with the aim of ensuring the right to housing and access to 
private and public spaces for  persons with disabilities (Article 32). The main goal of this 
Law is to integrate persons with disabilities into society in order for them to be active in 
society and lead a normal life. As far as the built environment is concerned, it should be 
barrier-free and adapted to fulfil the needs of all people equally. 

Article 4(c) of Law 46/2006 states that ‘the refusal of or making conditional the sale, lease 
or sublease, as well as the access to bank loans for residential property purchases, and the 
refusal  or  penalty  in  the  execution  of  insurance  contracts’  in  relation  to  persons  with 
disabilities will be considered as a discriminatory practice. 

99   Decree-Law 594/74, 7 November 1974, available at: https://diariodarepublica.pt/dr/detalhe/decreto-

lei/594-1974-471532; Decree-Law 71/77, 27 September 1977, available at: 
https://diariodarepublica.pt/dr/detalhe/decreto-lei/71-1977-141650. 

100  Law 83/2019, 3 September 2019, available at: https://dre.pt/home/-/dre/124392055/details/maximized. 
101  Decree-Law 47344/66 (Civil Code), 25 November 1966, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=775&tabela=leis&nversao=&so_miolo. 
102  Law 38/2004, 18 August, available at: https://dre.pt/pesquisa/-/search/480708/details/maximized.  

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Mortgages are provided on special terms, provided that the property concerned is to be 
the  permanent  residence  of  the  person  with  disabilities.  There  are  also  special  loans 
available to adapt houses for persons with disabilities. 

a) 

Trends and patterns regarding housing segregation for Roma 

In  Portugal,  housing  segregation  and  discrimination  against  the  Roma  exist,  although  it 
does not follow the same trends everywhere. 

Social housing in Portugal is managed by the state, autonomous regions and municipalities. 
The  state  is  responsible  for  setting  housing  budgets  and  defining  regulations  for  the 
allocation of social dwellings, according to income-based criteria. 

Given the universal right to housing programmes and the equality principle, which applies 
to all communities and ethnic groups, no specific measures have been proposed for Roma 
communities.  Nevertheless,  efforts  have  been  undertaken  in  order  to  ensure  that  Roma 
communities benefit from housing policies. 

The difficulties connected with social housing in general (social housing covers only 2 % to 
3 %  of  the  households  in  Portugal)  make  it  difficult  to  solve  the  specific  problem  of 
rehousing  Roma,  thus  requiring  the  displacement  of  Roma  communities 
from 
encampments and shanty towns to social housing. Existing inhabitants frequently complain 
about the rehousing of Roma in the same area. There have been reports of discrimination, 
and  the  European  Commission  against  Racism  and  Intolerance  (ECRI)  Fourth  Report  on 
Portugal  (2013)  referred  to  discrimination  against  the  Roma  in  access  to  housing.  In 
addition,  on  30  June  2011,  the  European  Committee  of  Social  Rights  of  the  Council  of 
Europe, in European Roma Rights Centre v. Portugal (complaint No. 61/2020), considered 
that  Portugal  had  violated  Articles  16,  30  and  31  of  the  European  Social  Charter, 
interpreted  in  conjunction  with  Article  E,  since  housing  provision  was  not  adequate  and 
showed traits of segregation.103 

It has been estimated that many Roma communities still live in shanty towns despite the 
Special  Programme  for  Rehousing  (Programa  Especial  de  Realojamento)  set  up  by  the 
national  authorities,  which  has  enabled  many  Roma  families  to  leave  the  shanty  towns 
where they were living in Lisbon and Porto and move to decent housing. Nevertheless, in 
many cases, public housing programmes, whether they are national or municipal, have led 
to the concentration of Roma families and communities in the outskirts of urban areas, in 
neighbourhoods that are sometimes, in a clear exercise of territorial segregation, destined 
only or mainly for the Roma. 

Some Roma communities still live in the most basic of encampments on the outskirts of 
towns, sometimes without any access to essential services such as water and electricity. 
No general or municipal policies on infrastructure for itinerant camps exist. 

There  are  allegations  of  evictions  from,  and  demolition  of,  Roma  housing  without  any 
alternative accommodation being offered, which could, if such a case reached the courts, 
entail  an  offence  in  breach  of  the  European  Convention  on  Human  Rights.  However, 
according  to  the  Council  of  Europe,  some  progress  has  been  made  with  regard  to 
housing.104 

Despite  the  efforts  undertaken  to  promote  social  integration,  many  Roma  individuals 
continue to be affected by extreme poverty, social exclusion and poor housing conditions. 

103  Text available at: https://www.escr-

net.org/sites/default/files/ERRC%20v.%20Portugal%20%28decision%29.pdf. 

104  Advisory Committee on the Framework Convention for the Protection of National Minorities, ‘Fourth Opinion 

on Portugal’, 28 June 2019, ACFC/OP/IV(2019)002, available at: https://rm.coe.int/4th-op-portugal-
en/1680998662. 

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In  this  sense,  the  Portuguese  Government,  in  the  above-mentioned  National  Roma 
Communities  Integration  Strategy  2013-2022,  which  has  been  reviewed  in  2018  by  the 
Government  and  extended  until  2023,  considers  that  it  is  essential  to  guarantee  Roma 
individuals and families equal access to housing and that it is necessary to improve their 
housing conditions as well as combating spatial segregation. 

During the COVID pandemic, concerns were raised and debates were held about the high 
number  of  COVID-19  infections  in  Roma  communities  living  in  improvised  housing  and 
shanty towns, due to the lack of hygienic conditions.105 This motivated the Government to 
assume the coordination of the response to the Roma population affected by COVID-19 in 
some areas (Moura and Beja).106 

105  See: https://www.publico.pt/2020/03/25/sociedade/noticia/sabao-nao-caro-preciso-agua-corrente-

1909138; http://moraremlisboa.org/2020/06/05/debate-virtual-covid-19-comunidades-ciganas-e-exclusao-
territorial/. 

106  See: https://www.portugal.gov.pt/pt/gc22/comunicacao/noticia?i=governo-coordena-resposta-a-

populacoes-ciganas-afetadas-pela-pandemia-covid-19. 

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4  EXCEPTIONS 

4.1  Genuine  and  determining  occupational  requirements  (Article  4  Directive 

2000/43, Article 4(1) Directive 2000/78) 

In  Portugal,  national  legislation  provides  for  an  exception  for  genuine  and  determining 
occupational requirements. 

The  legislation  on  equality  and  non-discrimination  in  the  workplace  allows  for  some 
differences in treatment. Article 25(1) of the Labour Code in effect prohibits all practices 
of discrimination by the employer on the grounds listed. According to the Code, a difference 
in treatment that is based on a characteristic related to any of the grounds listed will not 
constitute discrimination if, by reason of the nature of the particular occupational activities 
concerned or of the context in which they are carried out, such a characteristic constitutes 
a  justifiable  and  determining  occupational  requirement,  provided  that  the  objective  is 
legitimate and the requirement is proportionate (Article 25(2)). Article 25(3) adds that ‘in 
particular, differences of treatment on grounds of age which are necessary and appropriate 
to  the  achievement  of  a  legitimate  aim,  such  as  employment  policy,  labour  market  or 
vocational training, are permitted’. 

The same reasoning is accepted by Law 3/2011 concerning the prohibition of discrimination 
in access to and the exercise of self-employment (Article 4(4)) and by Law 46/2006, which 
prohibits  and  punishes  discrimination  based  on  disability  and  on  a  pre-existing  risk  to 
health (Article 5(3)). 

The  authors  consider  that  national  law  complies  with  the  directives  and  that  no 
discrepancies in interpretation will arise. 

4.2  Employers  with  an  ethos  based  on  religion  or  belief  (Article  4(2) 

Directive 2000/78) 

In Portugal, national law does not explicitly provide for an exception for employers with an 
ethos  based  on  religion  or  belief.  However,  this  exception  can  be  derived  from  a 
combination of several legal provisions and would, naturally, require judicial interpretation 
to be asserted. 

First, the refusal to hire a person on the grounds of his/her religion comes under the scope 
of the prohibition of discrimination laid down by Article 24 of the Labour Code, although 
Article 25(2) of the Code states: 

‘It  does  not  constitute  any  discrimination  when  the  behaviour  based  on  a 
discrimination  factor  that  constitutes  a  justifiable  and  determining  occupational 
requirement  for  the  exercise  of  the  profession,  given  the  nature  of  the  activity  in 
question or the context of its implementation, where it is objectively justified by a 
legitimate aim and the means of achieving that aim are proportionate’. 

Religion or belief may be considered a justified discrimination factor, provided the employer 
has  an  ethos  based  on  such  religion  or  belief  and  that  the  activities  undertaken  by  the 
employee or to be undertaken by an applicant are in strict connection with that ethos. 

Secondly, as a general rule, Article 53 of the Constitution prohibits dismissal without fair 
cause or for political or ideological reasons. Dismissal with just cause/based on disciplinary 
reason only occurs when an employee commits a disciplinary offence that is serious, and 
its  consequences  make  it  immediately  and  practically  impossible  for  the  employment 
contract to remain in force. In this respect, the situation of the employer, the character of 
the relationship between the parties  or between the worker and his/her  co-workers and 
any other relevant circumstances – the type of organisation, the nature of the job – must 

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be  taken  into  consideration  to  examine  the  impossibility  of  the  continuation  of  the 
employment relationship. It can be deduced that conflicts between organisations with an 
ethos based on religion and belief and their employees would be solved on the basis of the 
same  principle  and  that  the  organisation’s  ethos  and  the  nature  of  the  activities  can  be 
criteria to justify a disciplinary dismissal due to a serious breach of loyalty and good faith. 
Article  351  could  also  be  applicable  when  there  is  an  ‘ideological’  conflict  between  the 
worker and the organisation (for instance, a trade union or a political party), but as it is 
an issue of just cause for dismissal, that would have to be the subject of a court ruling. 

Finally, Article 3 of the Law on Religious Freedom (Law 16/2001) states that churches are 
free  to  organise  themselves,  exercise  their  functions  and  provide  church  services.  The 
freedom of organisation may lead to not hiring a worker with a different religion or belief. 

The same reasoning applies to other organisations with an ‘ethos’, such as political parties 
and  philosophical  organisations.  A  decision  on  the  effect  of  a  contradiction  between  the 
convictions of an individual and the ethos of an organisation on the loyalty of the individual 
has to be taken by the courts, but so far there have been no examples. The issue must be 
solved on a case-by-case basis. 

So far, religious entities have in practice benefited from discretion in hiring or dismissing 
any  worker  who  does  not  conform  to  their  professed  religion,  stated  beliefs  or  religious 
ethos in general, and the same applies to political parties. 

The  Catholic  Church  in  Portugal  can  also  select  religious  teachers  in  state  schools  to 
administer  Catholic  religious  and  moral  education  (educação  moral  e  religiosa  católica), 
which is an optional discipline. The recruitment of and necessary qualifications for teachers 
of  Catholic  religious  and  moral  education  are  covered  by  Decree-Law  70/2013.107  It 
establishes  the  legal  regime  for  the  teaching  and  organisation  of  Catholic  religious  and 
moral  education  at  state  primary  and  secondary  schools,  under  the  terms  of  the  2004 
Concordat  between  the  Portuguese  state  and  the  Vatican,  which  was  signed  on 
18 May 2004 and approved by the Resolution of the Assembly of the Republic 74/2004, of 
16 November 2004. 

According to Article 24(1) of Law 16/2001 (Law on Religious Freedom), churches and other 
religious  communities  (whether  individually  or  in  conjunction,  if  they  profess  a  single 
confession  or  agree  on  a  common  programme)  may  demand  from  the  competent 
Government ministry the opportunity to allow them to administer religious teaching in the 
state primary and secondary schools they indicate. 

The Portuguese law and practice respects Article 4(2) of Directive 2000/78 and there is no 
relevant case law.108 

4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recitals  18 

and 19, Directive 2000/78) 

In  Portugal,  national  legislation  does  not  provide  for  a  specific  exception  for  the  armed 
forces in relation to age or disability discrimination (Article 3(4) of Directive 2000/78/EC), 
but the conditions for access inevitably limit employment on the basis of age and physical 
ability. 

107  Decree-Law 70/2013, 23 May 2013, amended by Decree-Law 210/2015, 25 September 2015, available at: 

https://dre.pt/application/file/261022. 

108  Also pointing to this absence, see: https://www.jn.pt/nacional/portugal-sem-casos-significativos-de-

discriminacao-por-motivos-religiosos-13591612.html, based on the 2021 report, Religious Freedom in the 
World. 

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There are also no provisions or exceptions relating to employment in the police, prison or 
emergency  services.  However,  the  physical  ability  required  may  limit  access  to  such 
employment. 

4.4  Nationality discrimination (Article 3(2)) 

a)  Discrimination on the grounds of nationality 

In Portugal, nationality (as in citizenship) is explicitly mentioned as a protected ground in 
national anti-discrimination law. 

Discrimination on the grounds of nationality is forbidden in Article 13 of the Constitution.  

Article 1 of Law 93/2017 forbids discrimination on the grounds of nationality. Also in the 
housing  field,  Law  83/2019  includes  nationality  as  an  explicitly  protected  ground 
(Article 2). 

The  Labour  Code  explicitly  states  that  discrimination  on  the  grounds  of  nationality  is 
forbidden in access to employment and work (Article 24(1)). This includes stateless status 
(Articles 4  and  24(3)(a)).  Article  4  of  the  Code  grants  foreign  workers  and  stateless 
individuals equal rights with Portuguese citizens, provided that they are legally permitted 
to work in the country. They must have a written contract of employment (Article 5(1) of 
the  Labour  Code)  and  produce  documents  proving  that  they  have  a  work  or  residence 
permit (Article 5(1)(b) of the Code). 

The framework law on housing also forbids any discrimination on the grounds of nationality 
(Article 2 of Law 83/2019). 

Despite  the  constitutional  principle  of  equivalence  between  Portuguese  citizens  and 
foreigners, stateless persons and EU citizens, national law still includes some exceptions 
relating to difference of treatment based on nationality. 

Article 15 of the Constitution, on foreign nationals, stateless persons and European citizens, 
states that foreign nationals and stateless persons who find themselves or who reside in 
Portugal enjoy the same rights and are subject to the same duties as Portuguese citizens. 

However,  political  rights,  the  exercise  of  public  functions  that  are  not  predominantly 
technical  in  nature  and  the  rights  and  duties  that  the  Constitution  and  the  law  reserve 
exclusively  for  Portuguese  citizens  are  excepted  from  the  provisions  of  the  previous 
paragraph.  This  does  not  apply  to  citizens  of  Portuguese-speaking  states  who  reside 
permanently in Portugal. 

Appointment to the offices of President of the Republic, President of the Assembly of the 
Republic, Prime Minister and President  of any  of the supreme  courts,  and service in the 
armed forces and the diplomatic corps are, in principle, restricted to Portuguese citizens. 

Under reciprocal terms, the law may accord foreigners who reside in Portugal the eligibility 
to vote in elections and stand for election as office-holders of local authority bodies. Under 
reciprocal terms, the law may also accord citizens of European Union Member States who 
reside in Portugal the eligibility to vote in elections and stand for election as Members of 
the European Parliament. 

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As  regards  citizenship,  Organic  Law  2/2020  of  10  November  amended  Law  37/81  of 
3 October, the Portuguese Law on Nationality,109 and introduced novel provisions in respect 
of access to Portuguese nationality, making it easier for children of foreigners to acquire 
it. 

For instance, those who, at the moment of their birth in Portugal, had one of their parents 
legally residing in Portugal or having resided here, irrespective of the title, for at least one 
year, are now considered to be Portuguese citizens of origin. 

b) 

Relationship between nationality and ‘racial or ethnic origin’ 

There is no judicial case law concerning the relationship between nationality and race  or 
ethnic  origin,  but  discrimination  on  grounds  of  nationality  may  also  constitute  direct  or 
indirect discrimination on grounds of ethnic origin, as has been the case with complaints 
of multiple discrimination within CEARD. 

4.5  Health and safety at work (Article 7(2) Directive 2000/78) 

In  Portugal,  there  are  exceptions  in  relation  to  disability  and  health  and  safety  at  work 
(Article 7(2), Directive 2000/78/EC). 

An employer can exclude a person with disabilities on the grounds that the work will pose 
a risk to that person’s health and safety. It is not for individuals with disabilities to decide 
for themselves that they wish to accept the health and safety risks, as the employer will 
not  be  excluded  from  liability  if  the  person  with  disabilities  suffers  any  harm  in  such 
circumstances (Articles 126 and 127 of the Labour Code). It is the employer who assesses 
what measures are needed to protect the health and safety of employees with disabilities 
as there is no prerequired expert advice on this issue.110  

The  situation  can  be  reviewed  by  ACT,  the  General  Health  Inspectorate  (Inspecção  de 
Saúde da Direcção Geral de Saúde) and the labour courts (a person with disabilities can 
challenge an employer’s decision before the labour courts).  

Law 38/2004 sets out the general legal basis for the prevention of the causes of disability 
and the training, rehabilitation and participation of persons with disabilities (Articles 4 to 
15). 

Articles 85-88 of the Labour Code contain provisions that seek to ensure the health and 
safety of persons with disabilities at work and to secure better integration and adaptation 
to enable them to work. 

There are no exceptions relating to health and safety law in relation to other grounds. The 
law does not mention issues connected to dress or personal appearance.  

109  Law 37/81, 3 October, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=614&tabela=leis. 

110  According to Portuguese Labour Code, the employer cannot require a candidate or an employee to provide 
information on health status, unless justified by the particular requirements inherent in the nature of the 
professional activity and provided by a physician in writing with grounds. In addition, the employer is not 
allowed to ask job applicants to take medical exams, except with the purpose of protection and safety of the 
employee or of third parties, or when particular requirements inherent in the nature of the professional 
activity so justify and must in any case be provided in writing (Articles 17 and 19). 

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4.6  Exceptions  related  to  discrimination  on  the  grounds  of  age  (Article  6 

Directive 2000/78) 

4.6.1  Direct discrimination 

a) 

Exceptions to the prohibition of direct discrimination on grounds of age 

In Portugal, national law provides for  specific exceptions for direct discrimination on the 
grounds  of  age.  For  instance,  physicians  are  exempted  from  performing  night-time 
emergency service from the age of 55. 

b) 

Justification of direct discrimination on the grounds of age 

In Portugal, national law provides for justifications for direct discrimination on the grounds 
of age. 

Article 25(3), in connection with Article 25(2) of the Labour Code, states that 

‘…differences of treatment on the grounds of age shall not constitute discrimination, 
if, within the context of national law, they are objectively and reasonably justified by 
a  legitimate  aim,  including  legitimate  employment  policy,  labour  market  and 
vocational training objectives, and if the means of achieving that aim are appropriate 
and necessary’.  

This corresponds to the exact wording of the Directive.  

Legal  rules  or  collective  agreements  that  fall  within  Article  25(3)  must  nevertheless  be 
periodically evaluated and modified if they are no longer justifiable (Article 25(4)). 

Portuguese law complies with the Directive and with the jurisprudence of the CJEU, but it 
does not list potential legitimate aims (as in Article 6 of the Directive). 

The authors of this report do not know of any Portuguese court case on this issue, except 
for the Portuguese Constitutional Court’s decision No. 526/2016 of 4 October 2016. In this 
case, in which an instance of age discrimination was disputed, the Court stated – merely 
as an obiter dictum – that age does not figure among the causes that justify the application 
of  Article  13(2)  of  the  Constitution,  but  nonetheless  used  terms  such  as  ‘unfounded 
discrimination’. It established, however, that there is a consistent case-law line according 
to  which,  regarding  age,  differences  in  treatment  should  be  justified  rationally  and 
objectively in reasonable terms, and there should be a sufficient substantial reason behind 
the measure that neutralises arbitrariness and eliminates unfounded discrimination. 

Therefore, for the Constitutional Court, it seems that potential age discrimination will be 
appraised on the basis of a reasonableness test and not a strict proportionality test. 

c) 

Permitted differences of treatment based on age 

National  law  permits  differences  of  treatment  based  on  age  for  any  activities  within  the 
material scope of Directive 2000/78/EC. 

Article 25(2) and (3) of the Labour Code admits differences of treatment on the grounds 
of age if they are: 

‘objectively  and  reasonably  justified  by  a  legitimate  aim,  including  legitimate 
employment  policy,  labour  market  and  vocational  training  objectives,  and  if  the 
means of achieving that aim are appropriate and necessary’. 

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This corresponds to the exact wording of the Directive. 

No  list  of  permitted  differences  in  treatment  is  explicitly  mentioned  in  the  Portuguese 
legislation. 

d) 

Fixing of ages for admission to occupational pension schemes 

National law allows occupational pension schemes to fix ages for admission to the scheme, 
taking up the possibility provided for by Article 6(2) of the Directive. 

In the case of occupational pension schemes, it is possible under Portuguese legislation to 
fix ages for admission to a scheme to benefits under it. Pension schemes must respect the 
principle of non-discrimination, but they can fix ages for admission if these can be justified 
under the conditions of the specific pension scheme. The most common fixed ages are 60, 
62 and 65. 

4.6.2  Special conditions for younger or older workers  

In Portugal, there are special conditions set by law for younger and older workers in order 
to promote their vocational integration. Over the years, Portugal has established initiatives 
and measures to reduce youth unemployment and/or early departure from the education 
and training systems.  

In  2012,  in  response  to  the  fast-growing  unemployment  rate  among  young  people,  the 
Portuguese Government approved a ‘Strategic Plan of Initiatives for the Promotion of the 
Employability of Young People and the Support to SMEs’ (‘Impulso Jovem’). 

The  majority  of  measures  included  in  this  high-priority  programme  for  the  Government 
were  later  integrated  in  the  Portuguese  plan  for  the  implementation  of  the  youth 
guarantee.  Implementation  of  this  plan  started  in  January  2014,  targeting  people  aged 
under 30. The Portuguese youth guarantee plan includes an extensive list of measures to 
promote employment, education and training, traineeships, entrepreneurship and mobility, 
such  as  vocational  guidance;  job-search  and  career  management  training;  the 
development of soft skills and individual counselling actions to match profiles; traineeships 
(in Portugal and abroad); direct placement in the labour market; hiring incentives; support 
for  entrepreneurship  and  self-employment  and  the  creation  of  small  businesses;  and 
support  for  transnational  mobility.  For  instance,  according  to  Decree-Law  72/2017  of 
21 June 2017, employers may obtain an exemption from payment of social security if they 
hire  young  people  (aged  under  30)  or  unemployed  persons  (unemployed  for  more  than 
24 months) aged 45 or over. 

In 2018, the Portuguese Government approved the implementation of measures published 
in  the  2018-2021  National  Youth  Plan.111  Concerning  employment,  the  priorities  are  to 
promote the realisation of the right to decent and inclusive employment; universalise faster 
and better access to a first job; and combat precarious employment, with a view to the 
sustainability of the emancipatory process and the creation of autonomy for young people. 

In  2020,  to  face  the  economic  and  social  impacts  of  the  COVID-19  pandemic,  the 
Government established as one of the priority axes of the Economic and Social Stabilisation 
Programme (Programa de Estabilização Económica e Social), approved by the Resolution 
of  the  Council  of  Ministers  41/2020  of  6  June,  the  maintenance  of  employment  and  the 
gradual recovery of economic activity. In this context, the measure ‘ATIVAR.PT - Enhanced 
Support Programme to Employment and Vocational Training’ was created. This Programme 
aims to ensure an adequate and rapid response with support programmes for hiring and 

111  Resolution of the Council of Ministers 114-A/2018, 4 September 2018, available at: 
https://dre.pt/dre/detalhe/resolucao-conselho-ministros/114-a-2018-116330692. 

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internships, in combination with programmes for specific sectors and groups. It includes 
two policy measures: a) ATIVAR.PT Internships; b) ATIVAR.PT Incentive. 

Ordinance  206/2020  of  27  August  2020  regulates  the  measure  ATIVAR.PT  Internships, 
which consists of supporting the insertion of young people (up to 29 years), older workers 
(aged  45  or  over)  and  other  specific  groups  into  the  labour  market  or  the  professional 
rehabilitation of these groups, through practical experience in a work context. 

Ordinance  207/2021  of  27  August  2020  regulates  the  measure  ATIVAR:PT  Incentive,  a 
financial  support  to  employers  who  enter  into  open-ended  or  fixed-term  work  contracts 
with  unemployed  people  –  young  people,  people  aged  45  and  over  and  other  specific 
groups – registered in the Instituto de Emprego e Formação Profissional, or IEFP (Institute 
for Employment and Vocational Training). These contracts must have a minimum duration 
of 12 months and provide mandatory vocational training to the contracted workers. 

In  2021,  also  in  response  to  the  fast-growing  unemployment  rate  among  young  people 
during  the  COVID-19  pandemic,  the  Portuguese  Government  approved  the  ‘Sustainable 
Employment  Commitment’,112  a  measure  to  reinforce  the  Portuguese  plan  for  the 
implementation of the youth guarantee. The objectives of this investment are the creation 
of permanent and quality labour contracts under the Sustainable Employment Commitment 
programme, and the reduction of labour market segmentation among all groups, including 
youth.  In  order  to  speed  up  return  to  employment,  employers  are  given  temporary 
subsidies  in  exchange  for  offering  open-ended  contracts  paying  adequate  wages.  The 
employer  receives  a  minimum  of  EUR 5 266  (12  times  the  social  support  index,  which 
serves  as  reference  for  the  calculation  of  various  social  security  benefits)  for  each 
employment  position  created,  which  may  be  topped  up  by  25 %  in  two  circumstances: 
hiring of workers younger than 35 years of age and jobs paying at least twice the minimum 
wage  per  month  (EUR 665  in  2021).  The  opening  period  for  application  to  the  measure 
‘Sustainable  Employment  Commitment’,  which  is  part  of  the  Portugal  2030  Strategy, 
framed within the European Union’s Recovery and Resilience Mechanism, started on March 
15 2022, after the publication in the Official Gazette of the Ordinance No. 38/2022, which 
regulates the new measure. In essence, this regulation  rewards employers economically 
for entering into open-ended employment contracts with unemployed people registered at 
the  Employment  and  Vocational  Training  Institute  (IEFP).  The  unemployed  person  must 
have been registered with IEFP for at least six consecutive months. In some cases provided 
for in Article 6 of this  Ordinance the  period  can be reduced to  two  months (e.g. person 
aged  35  years  old  or  under,  45  years  old  or  over)  or  eliminated  (e.g.  person  with 
disabilities, refugee). 

4.6.3  Minimum and maximum age requirements 

In Portugal, there are exceptions permitting minimum and maximum age requirements in 
relation to access to employment (notably in the public sector) and training. 

The normal minimum age for access to employment is 16 years (Article 68(2) of the Labour 
Code). According to Article 68(3) of the Code, minors under 16 years of age are allowed 
to work provided that they have already finished compulsory education and the tasks set 
are  simple  and  will  not  damage  their  health  and  personal  development.  Compulsory 
education ends with completion of the ninth grade, and children begin school at the age of 
six (Article 6(1) and (2) of Law 46/86). Children normally end their basic education at 15 
years  of age. ACT must be informed  of the employment  of  such persons (Articles 55(4) 
and 56(3) of the Labour Code). Article 72(3) of the Code prevents those under 18 years of 
age from undertaking activities ‘which, by their nature or the circumstances in which they 
are provided, are harmful to the physical, mental and moral development of minors’. 

112  Resolution of the Council of Ministers 188/2021, 16 December 2021, available at: 

https://portugal2020.pt/wp-content/uploads/rcm188_2021.pdf. 

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For some types of public service, such as the army or the police, there is an age limit for 
access to employment. This is covered by Article 6 of the Directive. The normal minimum 
age requirement for public servants is 18. 

For  legal  professions  –  judges,  prosecutors,  lawyers,  notaries,  bailiffs  and  judicial 
mediators  or  judicial  referees,  for  example  –  there  is  no  minimum  requirement  for  the 
exercise of the profession. However, the length of the required academic training means 
that entrance into the exercise of the professions cannot occur below the ages of 22 to 25. 

The maximum age for the  exercise of the said  professions is dictated  by the  age of the 
mandatory  retirement.  That  means  nobody  should  accede  to  legal  professions  after  the 
age of retirement, with the exception of lawyers, who may be allowed to continue practising 
by the Bar Association (Ordem dos Advogados). 

4.6.4  Retirement  

a) 

State pension age 

In Portugal, there is a state pension age at which individuals can begin to collect their state 
pension. 

For private and public sector workers, the state pension age in 2022 was 66 years and 7 
months (Ordinance 53/2021, 10 March). 

In accordance with Decree-Law 119/2018, a flexibility rule was introduced, according to 
which a beneficiary who has fulfilled the guarantee period and is at least 60 years of age 
and who, while at that age, has 40 or more years of remuneration record relevant for the 
calculation of the pension, will be entitled to start receiving the state pension. 

If an individual wishes to work beyond the state pension age, the pension can be deferred. 

In  the  public  sector,  deriving  from  Decree-Law  6/2019,113  an  individual  can  collect  a 
pension  and  still  work,  if  extension  of  the  work  relationship  is  permitted.  In  the  private 
sector, there is no prohibition on simultaneous collection of pensions and salaries. 

b)  Occupational pension schemes 

In Portugal, occupational social security  schemes are  rare due to the  universal scope  of 
the general public social security system. The Portuguese legislation regarding occupational 
social security systems is Decree-Law 12/2006.114  

In Portugal, there is no normal age at which people can begin to receive payments from 
occupational pension schemes and other employer-funded pension arrangements.  

In  the  private  sector,  if  an  individual  wishes  to  work  for  longer,  payments  from  such 
occupational pension schemes can be deferred. 

An  individual  can  collect  a  pension  and  still  work,  subject  to  agreement  between  the 
parties.  The  normal  age  range  to  start  receiving  payments  from  occupational  pension 
schemes is between 60 and 65 years of age. 

113  Decree-Law 6/2019, 14 January 2019, available at: https://dre.pt/home/-

/dre/117754017/details/maximized. 

114  Decree-Law 12/2006, 20 January 2006, amended by Decree-Law 180/2007, 9 May, Decree-Law 357-
A/2007, 31 October, Decree-Law 18/2013, 6 February, Decree-Law 124/2015, 7 July, Law 147/2015, 
9 September and Decree-Law 127/2017, 9 October. Available at: https://dre.pt/application/file/538934. 
This Law regulates the establishment and functioning of pension funds and pension fund managers and 
transposes into law Directive 2003/41/EC of the European Parliament and of the Council of 3 June regarding 
activities and the supervision of institutions for occupational retirement provision. 

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c) 

State-imposed mandatory retirement ages 

In Portugal, there is a state-imposed mandatory retirement age for public employees.  

The mandatory retirement age is 70 years (Article 292 of the General Regime for Contract 
Work for the Public Sector). Recently, Decree-Law 6/2019115 has permitted the extension 
of the work relationship in the public sector whenever there is a justified public interest. 
The new provision (Article 294-A) of the General Regime for Contract Work for the Public 
Sector states that the relationship can be continued as a fixed-term employment contract 
(or limited executive tenure), upon request by the employee, if it is in the public interest. 
The  fixed-term  contract  may  be  concluded  for  a  period  of  not  less  than  six  months, 
renewable up to a maximum overall period of five years. 

For private employees, there is no mandatory retirement age. However, special statutes 
exist. For instance, the retirement age for lawyers is 65. Even if lawyers are retired, they 
may be allowed to continue practising by the Bar Association. 

d) 

Retirement ages imposed by employers 

In Portugal, in the public and private sector, national law does not permit employers to set 
retirement ages (or ages at which the termination of an employment contract is possible) 
by contract or collective bargaining or unilaterally. 

If an employer wishes a worker to retire at, for example, 65 years of age, this has to be 
justified as if it were a dismissal. 

e) 

Employment rights applicable to all workers irrespective of age 

The law on protection against dismissal and other laws protecting employment rights apply 
to all workers, even if they remain in employment after attaining pensionable age or any 
other age. 

However, Article 348 of the Labour Code states that when an employee reaches the age of 
70,  his  permanent  work  contract  is  turned  into  a  fixed-term  contract.  The  duration  of 
his/her  employment  contract  will  be  six  months  on  a  renewable  basis,  subject  to 
termination  with  60  days’  notice  (Article  348(2)(c)).  The  majority  of  the  doctrine  and 
judicial decisions consider that the conversion of an employment contract into a fixed-term 
contract after the age of 70, provided for in Article 348 of the Labour Code, applies only to 
the employees who remain employed by the same employer. 

f) 

Compliance of national law with CJEU case law 

In  Portugal,  national  legislation  is  in  line  with  the  CJEU  case  law  on  age  regarding 
mandatory retirement. 

115  Decree-Law 6/2019, 14 January 2019, available at: https://dre.pt/home/-

/dre/117754017/details/maximized.  

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There have been cases  concerning Article 348  of the  Labour Code,116 but they have not 
ascertained  its  compliance  with  the  Directive  and  with  CJEU  case  law.117  Indeed,  the 
decisions  of the Portuguese Constitutional Court  on this issue  date back to 1995;118 the 
issue of discrimination was solved easily back then, once the requirement for those aged 
70 years or more was generally applicable to all persons of that age. 

4.6.5  Redundancy 

a) 

Age and seniority taken into account for redundancy selection 

In Portugal, national law permits seniority to be taken into account in selecting workers for 
redundancy. Extinction of a job position is applicable when the company lacks grounds to 
proceed  with  a  collective  dismissal  because  an  insufficient  number  of  employees  are 
involved  (i.e.  the  company  has  more  than  50  employees  and  the  closing  of  the  section 
affects  only  three  employees)  in  a  redundancy  caused  by  market,  structural  or 
technological motives (Article 367 of the Labour Code). 

In practical terms, age is not taken into account, but seniority is. In fact, if there are at 
least  two  similar  work  positions  that  may  be  extinct,  the  employer  must  comply  with  a 
sequence  of  non-discriminative  legal  criteria  in  order  to  select  which  employees  will  be 
affected  by  the  extinction:  a)  Worst  performance  evaluation,  according  to  an  appraisal 
system and criteria previously known to all the affected employees; b) Bigger burden in 
terms of costs for the company; c) Less experience in the job; d) Less seniority in the firm 
(Article 368 of the Labour Code). 

b) 

Age taken into account for redundancy compensation 

In Portugal, national law provides compensation for redundancy. Such compensation is not 
affected by the age of the worker. As has been mentioned, what counts is seniority.  

Employees subject to collective dismissal, dismissal resulting from job extinction or failure 
to  adapt  to  the  job  position  are  entitled  to  12  days’  basic  remuneration  and  seniority 
payments for each full year’s work. In the case of part of a year, the amount is calculated 
proportionately (Article 366 of the Labour Code). 

4.7  Further exception necessary in a democratic society: Public security, public 
order,  criminal  offences,  protection  of  health,  protection  of  the  rights  and 
freedoms of others (Article 2(5), Directive 2000/78) 

In Portugal, national law implicitly includes exceptions that seek to rely on Article 2(5) of 
the Employment Equality Directive. 

The  laws  implementing  the  directives  do  not  include  any  specific  exceptions  concerning 
public  security,  public  order,  prevention  of  criminal  offences,  protection  of  health  or 
protection of the rights and freedoms of others, but these exceptions seem to be implicit.  

Generally  speaking,  such  exceptions  can  be  considered  as  restrictions  to  fundamental 
rights.  Therefore,  Article  18  of  the  Constitution  may  be  invoked.  The  law  may  restrict 

116  Supreme Court of Justice, judgment of 21 of September 2017, procedure No. 31971/15.1T8LSB.L1.S1, 

available at: 
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/f3a262ab2476bd93802581a300347941?
OpenDocument. 

117  See CJEU, Palacios de la Villa, Case C-411/05 (ECLI:EU:C:2007:604) and Hörnfeldt v. Posten Meddelande 

AB, Case C-141/11 (ECLI:EU:C:2012:421). 

118  Constitutional Court, judgment of 31 October 1995, No. 581/95, available at: 

https://www.tribunalconstitucional.pt/tc/acordaos/19950581.html; Constitutional Court, judgment of 
14 December 1995, No. 747/95, available at: 
https://www.tribunalconstitucional.pt/tc/acordaos/19950747.html. 

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rights,  freedoms  and  guarantees  only  in  cases  provided  for  in  the  Constitution,  but  the 
restrictions must be limited to what is necessary to safeguard other rights or interests that 
are protected by the Constitution. Limitations to the main fundamental rights on the basis 
of public security, public order or similar are accepted by constitutional law experts, but 
they differ with regard to the extent of the limitations. 

No exceptions under this heading are provided for in the Labour Code.  

Over the years, there was a very active debate regarding the possibility for homosexual 
men  to  donate  blood,  since,  in  the  absence  of  a  very  specific  provision  in  law,  several 
practices,  sometimes  contradictory,  ensued.119  This  situation  ended  in  2021,  when 
Law 85/2021 of 15 December120 was adopted. It changes the Statute of Blood Donors and 
determines that anyone who meets the eligibility criteria defined by a decree of the Ministry 
of Health may donate blood, and that this eligibility criteria  will not discriminate against 
blood  donors  on  the  basis  of  their  sexual  orientation,  gender  identity  and  expression  or 
sexual characteristics.  

4.8  Any other exceptions 

In  Portugal,  there  are  no  other  exceptions  to  the  prohibition  on  discrimination  (on  any 
grounds covered by this report) provided in national law. 

119  See: https://www.publico.pt/2021/01/31/politica/noticia/homossexuais-impedidos-doar-sangue-apesar-lei-

permitir-nesse-dia-deixei-salvar-vida-1948617. 

120  Available at: https://dre.pt/dre/detalhe/lei/85-2021-175923953. 

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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, although it is not compulsory, in national law in 
respect of racial or ethnic origin, religion or belief, disability, age 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  based  on  the  following 
grounds: race or ethnic origin, nationality, ancestry and territory of origin. 

Article 27 of the Labour Code states that positive action measures are not discriminatory. 
According  to  this  provision,  legislative  measures  will  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.  

The law does not set any requirements that must be met in order for positive action to be 
implemented, e.g. necessity/proportionality. 

Article 3(b)  of Decree-Law 46/2006  on disability uses the  term ‘positive discrimination’; 
but  Law  38/2004,  on  the  same  grounds,  establishes  that  persons  with  disability  should 
have access to positive action measures, in order to correct a factual inequality situation 
that persists in social life (Article 6(2)). 

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

Articles 85 to 88 of the Labour Code refer to workers who have a disability or a  chronic 
disease  or cancer.  With regard to promoting employment  opportunities for  persons with 
disabilities, Article 85(2) provides that the  state will create incentives  for hiring  persons 
with disabilities or chronic diseases. According to Article 85(2) and Article 86(2), the state 
will  also  adopt  policies  on  employees  who  have  newly  acquired  disabilities  or  chronic 
diseases. These policies will give employers incentives to include measures to help such 
people to retain their  employment in the context of developing a strategy for managing 
disability  in  the  workplace.  As  regards  this  support,  Decree-Law  290/2009  of 
12 October 2009 established the employment and skills assistance programme for persons 
with  disabilities  (PEAQPDI)  and  approved  the  scheme  providing  technical  and  financial 
assistance  for the development  of  employment and skills assistance policies for persons 
with  disabilities.  The  measures  include  assistance  in  relation  to  skills,  aid  schemes  for 
integration, retention and reintegration in the labour market and subsidised employment, 

Indeed,  this  programme  provides  several  measures,  and  specific  guidance,  to  support 
persons with disabilities who  experience difficulties in beginning and making progress in 
their careers.121  

121  Ordinance 8376-B/2015, 26 June, available at: https://dre.pt/application/file/69906402; with the changes 

introduced by Ordinance 9251/2016, 20 July, available at: https://dre.pt/application/file/74996991. 

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In  2020,  the  programme  entitled  ‘ATIVAR.PT  –  Enhanced  Support  Programme  to 
Employment  and  Vocational  Training’  aimed  to  ensure  an  adequate  and  rapid  response 
through support programmes for hiring and internships, in combination with programmes 
for  specific  sectors  and  groups.  Ordinance  206/2020  of  27  August  2020  regulates  the 
measure for ATIVAR.PT internships. This measure is addressed at assisting all unemployed 
persons.  However,  specific  conditions  apply  to  some  groups,  including  those  with 
disabilities  or  impairments  (Article  3(1)(d));  for  instance,  the  promoter  entity  that 
integrates trainees with disability or impairment will see the internship duration extended 
for three more months, from 9 to 12 months (Article 8); every trainee with disability or 
impairment  is  entitled  to:  a  monthly  internship  grant,  meal  or  meal  allowance, 
transportation between his/her residence and the location where the internship will take 
place or transportation allowance, and insurance against accidents at work (Article 11). 

During  the  COVID-19  pandemic,  the  Portuguese  Government  approved  the  ‘Sustainable 
Employment  Commitment’,122  a  measure  created  by  the  Portuguese  Recovery  and 
Resilience Plan (June 2021), which is part of the Portugal 2030 Strategy, framed within 
the  European  Union’s  Recovery  and  Resilience  Mechanism.  The  objectives  of  this 
investment  are  the  creation  of  permanent  and  quality  labour  contracts  under  the 
Sustainable  Employment  Commitment  programme,  and  the  reduction  of  labour  market 
segmentation among all groups, including youth and persons with disabilities. In order to 
speed up return to employment, employers are given temporary subsidies in exchange for 
offering open-ended contracts paying adequate wages. 

On  17  January  2022,  the  Official  Gazette  published  Ordinance  No.  38/2022,  which 
regulates the new measure. In essence, this regulation  rewards employers economically 
for entering into open-ended employment contracts with unemployed people. 

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 
favour of tenants, since they need more protection from the law.123 

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’. 

Some plans in respect of non-discrimination on the basis of ethnic origin also provide for 
some  measures  that  may  be  qualified  as  positive  action.  The  ‘National  plan  to  combat 
racism and discrimination (PNCRD) 2021-2025 – Portugal Against Racism’ includes some 
positive action measures, such as:124 

- 

under  number  2.1.:  promoting  the  participation  and  representation  of  persons 
belonging  to  discriminated  groups  in  the  culture  field  under  a  ‘blind’  recruitment 
procedure for the Symphonic Orchestra, the National Theatre of Saint Charles  and 
the Body of Artistic Production. 

122  Resolution of the Council of Ministers 188/2021, 16 December 2021, available at: 

https://portugal2020.pt/wp-content/uploads/rcm188_2021.pdf. 

123  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. 

124  The National Roma Communities Integration Strategy also establishes some positive measures such as 

ensuring 40 OPRE Scholarships for 2021 (number 5.2.). 

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- 

- 

under number 3.1.: In access to higher education, the Government commits itself, 
for  2022,  to  ensure  500  vacancies  for  students  of  schools  of  the  Educational 
Territories of Priority Intervention (TEIP) – vacancies that will grow to 1 000 in 2023, 
1 500 in 2024 and 2 000 in 2025. The access to professional technical courses will 
also have a special quota for students from TEIP schools, but this will start only in 
2023 (with 150 vacancies, 300 in 2024 and 500 in 2025).  
under  number  3.8.:  Promoting  access,  frequency  and  conclusion  through  the 
Operational Programme of Education Programme (OPRE Programme) and the ROMA 
Educa Programme, with 40 OPRE scholarships for higher education in 2021, rising to 
60 scholarships in 2025; and 500 ROMA Educa Scholarships for  secondary schools 
for 2021, rising to 1 200 scholarships in 2025. 

b)  Quotas in employment for persons with disabilities 

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

Article  28  of  Law  38/2004  establishes  quotas  for  the  employment  of  persons  with 
disabilities of up to 2 % for private enterprises and up to 5 % for the public sector. 

The  system  of  employment  quotas  for  persons  with  disabilities  in  public  administration 
(central,  regional,  autonomous  and  local  public  administration  bodies)  is  regulated  by 
Decree-Law 29/2001.125 Only individuals affected with a degree of incapacity of 60 % or 
more  –  according  to  a  national  disability  classification  table  –  qualify  as  an 
employee/worker  with  disabilities  for  the  purposes  of  assessing  quota  compliance.  No 
sanctions are specified in cases in which an employer fails to comply with the quota, and 
there are no statistics on the number of persons with disabilities employed under the quota. 
As  a  consequence,  one  cannot  know  whether  or  not  the  practice  on  quotas  is  complied 
with. 

Other quotas have been applicable to private employers (as well as public employers that 
are not covered by Decree-Law 29/2001) since the entry into force of Law 4/2019. This 
Law applies to medium-sized and large enterprises, and regulates a system of quotas for 
the employment of persons with disabilities with a degree of incapacity of 60 % or more. 
Medium-sized  enterprises  with  a  workforce  of  more  than  75  employees  must  employ 
employees with disabilities as at least 1 % of their staff, while large enterprises with more 
than 250 employees are required to reach a level of at least 2 %. Employers who do not 
meet their quota obligation are obliged to pay a fine (of up to EUR 9 690.00) given this is 
a  serious  offence,  which  goes  to  the  Authority  for  Working  Conditions  (ACT)  and  to  the 
National Institute for Rehabilitation (Instituto Nacional para a Reabilitação – INR). The law 
determined that medium-sized or large companies employing more than 100 workers had 
a  transition  period  of  four  years  to  apply  and  comply  with  the  legal  requirements.  The 
stipulated transition period will end on 1 February 2023. 

According  to  the  report  ‘Persons  with  Disabilities  in  Portugal  –  Human  Rights  Indicators 
2022’,126  published  by  the  Disability  and  Human  Rights  Observatory  (ODDH),  in  2020 
(latest available data), in Portugal (mainland), only 0.59 % (n = 13 902) of the total human 
resources  of  private  companies  with  10  or  more  workers  were  persons  with  disabilities, 
thus, a slight increase compared to 2019 (+2.8 %; n = +982). These data still contrast 
with the objective of extending the Quota System for persons with disabilities to the private 
sector, introduced by Law No. 4/2019, 10 January. 

125  Decree-Law 29/2001, 3 February 2001, available at: https://dre.pt/pesquisa/-

/search/315563/details/maximized. 

126  ‘Persons with Disabilities in Portugal – Human Rights Indicators 2022’ (6th edition), by the Disability and 
Human Rights Observatory (ODDH/ISCSP-ULisboa), presented on 13 December 2022, available at: 
http://oddh.iscsp.ulisboa.pt/index.php/pt/2013-04-24-18-50-23/publicacoes-dos-investigadores-
oddh/item/600-relatorio-oddh-2022. 

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In the public  sector, in  2021, 20 389 (2.8 %)  of workers in public administrations were 
persons with disabilities, which represents an increase of 6 % compared to the previous 
year. These data show more women with disabilities (68 %; n = 13 882) than men (32 %; 
n = 6 507) employed in the public sector. 

The Labour Code states in Article 86(4) that laws or collective agreements may introduce 
provisions that are more favourable to the protection of workers with disabilities or chronic 
diseases than to the employer, while bearing in mind the interests of both. 

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6  REMEDIES AND ENFORCEMENT  

6.1  Judicial  and/or  administrative  procedures  (Article  7  Directive  2000/43, 

Article 9 Directive 2000/78) 

a) 

Available procedures for enforcing the principle of equal treatment 

In Portugal, the following procedures exist for enforcing the principle of equal treatment: 

Control of constitutionality procedure 

Every court has jurisdiction to apply the principle of equality. Furthermore, the courts may 
not apply norms that contravene this principle (Article 204 of the Constitution). The refusal 
to apply any norm on the grounds of its  unconstitutionality or the application of a norm 
whose unconstitutionality has been raised during the proceedings may be the subject of 
an  appeal  to  the  Constitutional  Court  against  court  decisions  (Article  280(1)  of  the 
Constitution). 

Labour courts procedures (for private sector) 

Specialised labour courts (Tribunais do Trabalho) deal with discrimination in employment 
in the private sector. They are part of the general judicial system but deal only with labour 
law  cases  concerning  employment  relationships,  work-related  accidents  and  illness, 
appeals  against  fines  and  disputes  concerning  social  security  rights.  They  deal  with  all 
questions arising from the drafting, execution and termination of employment contracts. 
These  courts  also  deal  with  appeals  regarding  sanctions  imposed  by  administrative 
agencies for non-compliance with employment laws. 

Alternative disputes resolution in labour law (private sector) 

No specific procedures for mediation in relation to discrimination are provided for in the 
Labour Code. However, the rules  for the labour courts make it mandatory  for the judge 
presiding over a case to hold at least one conciliation conference between the parties before 
trial,  and  require  the  courts  to  try  to  mediate  in  any  labour  dispute  coming  under  their 
jurisdiction (Articles 32(2), 36(2), 51(1), 51(2), 55(2) and 70(1) of the Labour Procedure 
Code  –  the  code  containing  the  rules  of  procedure  for  labour  issues  in  accordance  with 
Decree-Law  480/99  of  9  November  1999  (as  amended  by  Decree-Law  323/2001  of 
17 December  2001,  Decree-Law  38/2003  of  8  March  2003,  Decree-Law  259/2009  of 
13 October 2009 and Law 63/2013 of 27 August 2013)).127  

Article 492(2)(f) of the Labour Code also states that collective agreements should include 
mechanisms  for  conciliation  (Articles  523  et  seq.),  mediation  (Articles  526  et  seq.)  and 
arbitration (Articles 529 and 506 to 511) in labour disputes.  

In addition, according to Article 526(2) and (3) of the Labour Code, 

‘in  the  absence  of  conventional  regulation,  mediation  may  take  place:  a)  by 
agreement of all parties, at any time during the conciliation; or b) at the initiative of 
one  of  the  parties,  one  month  after  the  beginning  of  conciliation,  through 
communication in writing to the other party.’  

There is also a public system of mediation in labour law, established under the Protocol of 
5 May 2006 between the Ministry of Justice and the main workers’ confederations. 

127  Labour Procedure Code (Código de Processo do Trabalho), available at: 

www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=487&tabela=leis&so_miolo. 

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Racial discrimination is subject to disciplinary measures and the sanctions may go as far 
as  dismissal.  However,  victims  have  no  right  to  intervene  in  the  disciplinary  procedure. 
They have the right to file a complaint with the labour courts and to give evidence or to 
present witnesses. 

Administrative procedures and administrative courts (for the public sector) 

For  public  employees,  the  law  provides  a  system  of  internal  (mostly  hierarchical) 
administrative  appeals  that,  once  exhausted  (if  this  exhaustion  is  established  in  law), 
allows  public  employees  to  challenge  final  decisions  taken  by  public  bodies  before  the 
administrative  courts  (Article  4(3)(b)  of  Law  13/2002  of  19  February  2002  (Law  on  the 
Statute of Administrative and Tax Courts)). 

Both  arbitration  and  mediation  constitute  options  for  dispute  resolution  for  public 
employees  (Article  180(1)(d)  and  Article  87-C  of  Law  15/2002  of  22  February,  Law  on 
Procedure  in  Administrative  Courts).  There  is  an  institutional  Centre  for  Administrative 
Arbitration (Article 187 of Law 15/2002), which has mediation and arbitration powers in 
this field, if the parties wish to take that route.128 

Criminal law procedures 

If the discrimination is considered a crime under the Criminal Code, the victim may lodge 
a complaint with the police or the Public Prosecution Service (Ministério Público) or bring a 
civil case to a court. 

Procedures  for  mediation  in  criminal  law  are  currently  implemented  by  the  Ministry  of 
Justice under a public system, established in Law 21/2007 of 12 June. 

Civil law procedures  

If  questions  of  non-contractual  and  contractual  responsibility  arise  from  discriminatory 
behaviour,  the  competent  action  for  damages  will  be  directed  to  the  judicial  courts. 
Suspension of the instance is possible in the case of mediation, according to Article 273 of 
the Civil Procedure Code; this is, however, not frequent in Portuguese judicial courts. 

Administrative procedures (for the private sector) 

ACT129 is responsible for monitoring the enforcement of Labour Code provisions on equality 
and  non-discrimination,  investigating  any  complaints  arising  from  infringement  of  these 
provisions and imposing administrative sanctions for such violations as set out in the Code. 

It should be stressed that ACT has played a useful role in combating discrimination on the 
grounds of nationality and, in some cases, disability.  

In  the  event  that  ACT  decisions  are  challenged,  court  proceedings  are  initiated.  In  this 
case,  information  in  Braille  should  be  provided,  as  well  as  sign  language  interpreting  if 
necessary. There are no specific rules for the courts and  ACT on dealing with individuals 
with learning disabilities. 

In specific areas where independent administrative authorities have been established, they 
have the competence to regulate the market and therefore also to prevent and to pursue 

128  See Centre for Administrative Arbitration (Centro de Arbitragem Administrativa) website, available at: 

https://www.caad.org.pt/administrativo. 

129  Decree-Law 167-E/2013, 31 December 2013, entered into force on 1 January 2014, available at: 

www.act.gov.pt/(pt-PT)/SobreACT/QuemSomos/Missao/Documents/Decreto-Lei_167_c_2013.pdf. See also 
Implementing Decree 47/2012, 31 July 2012, available at: 
https://dre.pt/application/dir/pdf1sdip/2012/07/14700/0395903962.pdf. 

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instances  of  discrimination  or  discriminatory  practices.  This  is  the  case  with  the  Health 
Regulation  Authority  (Autoridade  Reguladora  da  Saúde)  according 
to  Decree-
Law 126/2014, 22 August, Article 12(b). 

Mediation in areas outside employment 

In the areas covered by Law 93/2017, Article 11 governs the possibility of mediation, at 
the request of the parties or initiated by CEARD, with the consent of the offender and the 
victim  (Article  11  of  Law  93/2017).  However,  mediation  is  never  mandatory  in  Portugal 
(according to Article 4 of Law 29/2013 of 19 April)130 and CEARD may only refer the parties 
to  mediation  and  not  assign  to  itself,  or  to  some  of  its  members,  the  role  of  mediator 
(Article 8(2)(c) of Law 93/2017). 

According to these rules, the mediator will be an independent and impartial third person 
whose main function is the facilitation of communication, chosen by agreement between 
the parties and qualified by a mediation course in the criminal area taught by an  entity 
certified by the Ministry of Justice, and the mediation procedure must be fast and involve 
the minimum number of sessions possible. 

In  Portugal,  mediation  covers  all  aspects  of  social  life  and  law,  so  it  is  also  open  to  all 
discrimination  grounds  (naturally  as  long  as  the  request  does  not  entail  concluding  an 
agreement that affects ‘non-transactionable’ personal interests (Article 11 of Law 29/2013 
of 19 April)). 

In addition, since mediation is  explicitly provided for in Law 93/2017  of 23 August, it is 
naturally applicable to all the grounds it covers: race or ethnic origin, colour, nationality, 
ancestry and territory of origin. 

However, there is no data on mediation on discrimination issues, for two reasons: 1) the 
confidentiality of the procedure itself; 2) and the fact that  CEARD does not provide any 
information on the number of discrimination claims that it has referred to mediation. 

On  a  related  note,  there  is,  however,  some  qualitative  and  quantitative  information  on 
intercultural mediation (mostly with Roma communities and in an educational context).131  

In addition, in the biggest Portuguese towns, there are Courts of the Peace (Julgados de 
Paz), which can also work in mediation. 

Within the Court of the Peace, voluntary mediation is one of the steps in the procedure. 
Once a  case is started,  a pre-mediation session takes place, conducted by a specialised 
mediator. This session aims to explain the mediation process to the parties and check the 
parties’  availability  for  resolving  their  dispute  by  mediation  (Articles  49  and  50  of 
Law 78/2001  of 13 July). In this session, parties will decide if they want to try to solve 
their cause by mediation or if they will assign the dispute to the Judge of the Peace. In the 
event of parties quitting the mediation procedure (or not accepting the use of mediation), 
the dispute will be decided by the  Judge  of the Peace  (Article 56  of Law 78/2001). This 
decision has the same validity as the decisions of every other national court (Article 61 of 
Law 78/2001 of 13 July). 

130  Law that establishes the general principles applicable to mediation in Portugal, as well as the legal regimes 

for civil and commercial mediation, mediators and public mediation, available at: 
https://dre.pt/dre/detalhe/lei/29-2013-260394. 

131  See, for instance, the constitution of 12 teams of intercultural mediators: (https://www.acm.gov.pt/-/-a-

mediacao-intercultural-e-uma-ferramenta-fundamental-). 

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Ombudsman 

According  to  Article  23(1)  of  the  Constitution,  citizens  may  submit  complaints  against 
actions  or  omissions by the public authorities to the  Ombudsman  (Provedor de Justiça), 
who  will  assess  them  without  the  power  to  take  decisions  and  will  send  the  competent 
entities and bodies the recommendations needed to prevent or make good any injustices. 
The Ombudsman’s work is independent of any non-judicial or judicial remedies provided 
for  in  the  Constitution  or  the  law.  The  entities,  bodies  and  agents  of  the  public 
administration must cooperate with the Ombudsman in the fulfilment of its mission. 

The Ombudsman has paid special attention to discrimination cases, but has no decision-
making  powers  in  the  event  of  a  dispute  nor  any  powers  to  impose  fines.  However,  its 
institutional  role,  its  power  to  issue  recommendations  and  its  particular  link  to  the 
Portuguese Parliament make it a valuable tool in promoting equality. 

Action by the Commission for Equality and Against Racial Discrimination (CEARD)  

According to Article 11(1) of Law 93/2017, any litigation arising from the application of the 
law may be settled by means of a mediation procedure on the initiative of CEARD or at the 
request of the parties and with the consent of the offender and the victim. 

For offences committed under Law 93/2017, the President of CEARD has the authority to 
initiate  an  administrative  procedure.  The  decision,  including  the  application  of  penalties 
and the level of the fine, is the responsibility of the Permanent Commission of CEARD.  

The respondent has the right to request judicial review of the administrative decision, as 
does the victim. Associations and NGOs whose aim is to prevent and combat discrimination 
have the right to request a judicial review or to intervene in judicial review proceedings if 
requested to do so by the victim. 

b) 

Barriers and other deterrents faced by litigants seeking redress 

For all the judicial procedures mentioned  above, the victims must instruct a lawyer and 
advance some funds. They are, however, entitled to legal assistance (apoio judiciário) if 
they do not have sufficient financial means to cover a lawyer’s fees and litigation costs. 
This also applies to foreign nationals. However, the length and complexity of the procedure 
may act as a deterrent to those seeking redress. 

As  far  as  administrative  procedure  is  concerned,  the  victim  has  the  right  to  ask  for 
information on the case and if necessary to complain to the Ombudsman. 

In criminal cases, there is no time limit for mediation procedures to start if the agent and 
victim agree in resorting to this mechanism – Article 3(2) of Law 21/2007 (there is only 
the stipulation that the case must be concluded within three months under Article 5(1) of 
Law 21/2007 of 12 June 2007, which establishes the penal mediation process).  

Cases can be brought within a period of up to one year after the employment relationship 
has ended (Article 337(1) of the Labour Code). 

In  procedures  to  impose  fines,  the  case  must  have  been  initiated,  according  to  Decree-
Law 433/82 on General Rules on Minor Offences (Article 27), within a period of one, three 
or five years from the date that the offence occurred, depending on the seriousness of the 
offence. 

As mentioned above, employees may benefit without cost from the support of the Public 
Prosecutor and  Authority for Working Conditions (ACT), and they may  also benefit from 
legal aid. 

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The  most  common  factor  acting  as  a  deterrent  is  the  length  of  the  procedure  and  the 
difficulty of obtaining evidence. 

Mediation can therefore be used as a means to overcome the barriers presented by judicial 
and  administrative  procedures.  Besides  private  mediation,  there  are  several  centres  for 
mediation  and  arbitration  in  consumer  law  and  housing  administration  disputes.  In 
addition, there are mediation services within the ambit of the Justices of the Peace that 
provide an institutionalised form of  community justice, which aims to  allow  for the  civic 
participation  of  those  concerned  and  to  encourage  the  fair  resolution  of  disputes  by 
agreement of the parties. 

Nonetheless, the use of these mechanisms is still very scarce in  Portugal, since they are 
not widely known and trusted. 

c) 

Number of discrimination cases brought to justice 

In  Portugal,  there  are  no  available  statistics  on  the  number  of  cases  related  to 
discrimination that are brought to justice. However, under Article 8 of Law 93/2017, it is 
CEARD’s duty to prepare and publicise an annual report on the situation of equality and 
discrimination  on  the  grounds  of  race  or  ethnic  origin  in  Portugal.  The  report  gathers 
statistical  and  administrative  data  related  to  racial  and  ethnic  discrimination,  including 
administrative procedures. 

The latest available report of the Commission for Equality and Against Racial Discrimination 
on Equality and Non-Discrimination regarding racial and ethnic origin, colour, nationality, 
ancestry  and  territory  of  origin  is  from  2021  and  has  no  indication  of  cases  brought  to 
courts. 

d) 

Registration of national court decisions on discrimination cases 

In  Portugal,  discrimination  cases  are  not  registered  as  such  by  national  courts. 
Nonetheless,  Article  15(4)  of  Law  93/2017  establishes  that  civil  liability  condemnatory 
decisions should, after they become res judicata, be published on the website of the HCM 
for a period of five years, including, as a minimum, the identification of the legal persons 
convicted,  information  about  the  type  and  nature  of  the  discriminatory  practice  and  the 
compensation  fixed.  In  addition,  Decree-Law  46/2006  establishes  that  civil  liability 
condemnatory decisions, after becoming final and binding, will be mandatorily published 
at  the  expense  of  those  responsible  in  one  of  the  daily  periodicals  with  the  greatest 
circulation in the country, by means of an extract from which only the facts evidencing the 
discriminatory  practice  on  the  grounds  of  disability,  the  identity  of  the  offended  and  of 
those convicted, and the compensation fixed, will be stated. The inclusion of the identity 
of the offenders will depend on their consent (Article 7(3)(4)). 

Since  judicial  cases  seldom  exist,  instances  of  such  registration  and  publicity  are  so  far 
non-existent. Therefore, only scattered decisions from superior courts can be found in the 
general database dgsi.pt. 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) 

a) 

Engaging in proceedings on behalf of victims of discrimination (representing them) 

In Portugal, associations, organisations and trade unions are  entitled to act on behalf of 
victims of discrimination. 

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Associations 

According to Article 12(1) of Law 93/2017, associations with the  objective of  combating 
discrimination  based  on  the  grounds  of  race  or  ethnic  origin,  nationality,  ancestry  and 
territory of origin have the right to engage in judicial procedures on behalf of the interested 
persons, with their approval. 

Under national law, associations have to be incorporated, with specific aims listed in their 
by-laws. They must aim to protect people against discrimination or protect fundamental 
rights  in  general.  There  are  no  membership  or  permanency  requirements.  ‘Legitimate 
interest’ is proven by the aims of the associations as contained in their by-laws. 

NGOs registered abroad can also act on behalf or in support of victims. 

The victim’s authorisation must be given in writing. In the case of minors or persons under 
guardianship, the authorisation of their parents or guardian is required.  

Action by all associations is discretionary. They decide what to do and in which cases to 
intervene. 

In  addition,  Article  15(1)  of  Law  46/2006  stipulates  that  associations  for  persons  with 
disabilities and other similar  organisations defending the rights and interests of  persons 
with disabilities have the right to intervene in support or on behalf of a complainant in his 
or  her  respective  legal  proceedings.  Such  organisations  have  the  right  to  monitor 
administrative procedures that may culminate in a fine for any discriminatory act referred 
to in Law 46/2006. Where a crime has been committed against a person with disabilities, 
these  organisations  have  the  right  to  assist  in  subsequent  criminal  proceedings.  The 
application of this law is monitored by the INR. 

Decree-Law 163/2006 (Article 14), on accessibility for persons with disabilities, provides 
that legal entities (NGOs and associations) representing persons with disabilities have legal 
standing in court to assist or act on behalf of individuals with disabilities in court cases in 
which they are involved.  

In  cases  of  minor  offences,  these  organisations  have  the  right  to  denounce  the 
discriminator and file a complaint with CEARD and the HCM. Individual complainants need 
be identified only if this is necessary to substantiate the complaint. 

Trade unions 

Trade  unions  are  entitled  under  national  law  (Article  5  of  the  Labour  Procedure  Code, 
Decree-Law  480/99  and  Articles  5  and  8  of  Law  3/2011)  to  act  on  behalf  of  victims  of 
discrimination. 

It  is  also  possible  for  trade  unions  to  engage  in  some  cases  on  behalf  of  victims  of 
discrimination  in  judicial  or  administrative  procedures  under  the  Labour  Code  and  the 
Labour Procedure Code. 

Article 5(2)(c) of the Labour Procedure Code (Código de Processo do Trabalho) states that 
trade unions may file actions to represent members who authorise them to do so in cases 
related to a general violation of individual rights of an identical nature. Article 5(3) states 
that authorisation is presumed if the member does not demonstrate any opposition after 
being informed by the trade union of its intention to file the action. 

Within  companies,  trade  unions  represent  only  their  members,  but  in  practice  they  are 
often accepted as competent to represent any worker. 

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Members  of  trade  unions  are  entitled  to  free  access  to  legal  representation.  The  Public 
Prosecution Service represents all workers in cases before the labour courts. 

Article 9(2) of the Employment Equality Directive is covered by Article 477(d) of the Labour 
Code, but only trade unions have the right to intervene in defence and protection of their 
members. 

Furthermore, Article 443(1)(d) of the Labour Code grants legal standing to trade unions in 
administrative proceedings, imposing fines in cases of violation of the anti-discrimination 
rules of the Code, with the right to file an appeal or to answer an appeal by the person 
found guilty. Article 5 of the Labour Procedure Code allows the intervention of trade unions 
in  employment  cases.  Although  membership  is  a  necessary  condition  for  trade  union 
standing,  this  is  not  monitored,  which  means  that  a  trade  union  may  also  intervene  in 
cases in which the worker is not a member of the union. 

NGOs 

NGOs working in the anti-discrimination field focus on the area or areas of discrimination 
in which they have expertise at national, regional or local level – for example, race, religion, 
sexual orientation or age – and are entitled to act on behalf of the victims of discrimination 
(Article 7 of Law 3/2011). Some NGOs that deal with immigrants or specific groups focus 
on their own communities. There is a wide range of NGOs in Portugal, with some of them 
being active in ethnic issues in particular or in working with certain communities (such as 
the Romani community). 

According  to  Article  12  of  Law  93/2017,  NGOs  with  the  objective  of  combating 
discrimination  based  on  the  grounds  of  race  or  ethnic  origin,  nationality,  ancestry  and 
territory of origin have the right to engage in judicial procedures on behalf of the interested 
persons, with their approval. 

Article 8 of Law 3/2011 states the following: 

‘Legal  standing:  organisations  whose  purpose  is  the  defence  or  promotion  of  the 
rights  and  interests  of  individuals  against  discrimination  regarding  access  to 
employment,  training  or  to  the  conditions  for  the  provision  of  self-employment  or 
employment,  have  legal  standing  to  intervene  on  behalf  of  the  person  concerned, 
provided that: 

a) 

b) 

the  associations  explicitly  include  protection  of  the  specific  interests  in  their 
assignments or by-law objectives; and 
there is express authorisation from the person represented.’ 

Article 55(1)(f), in connection with Article 9(2) of the Code of Procedure in Administrative 
Courts,  grants  legal  persons,  including  NGOs  whose  aim  is  to  protect  a  certain  general 
interest, the option of intervening in administrative procedures and subsequently the right 
to appeal to the administrative courts if they consider it necessary. However, there do not 
appear to be many opportunities to use this provision in cases related to discrimination, as 
it is intended to cover interventions in areas such as public health, the environment, town 
and country planning, quality of life, cultural heritage and the property of the  state, the 
autonomous regions and local authorities, and also to promote the enforcement of relevant 
court decisions. 

According  to  Article  68(1)(2)  of  the  Criminal  Procedure  Code,  any  person  may  bring 
proceedings in the case of crimes of discrimination, as set out in Article 240 of the Criminal 
Code. This provision covers both associations and natural persons. 

There are no special rules on shifting the burden of proof. 

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b) 

Engaging  in  proceedings  in  support  of  victims  of  discrimination  (joining  existing 
proceedings) 

In Portugal, associations, organisations and trade unions are also entitled to act in support 
of victims of discrimination. 

Associations are entitled to act in support of victims of discrimination under Article 12(1) 
of Law 93/2017. 

Trade  unions  are  entitled  to  act  in  support  of  victims  of  discrimination  (Article  5  of  the 
Labour Procedure Code, Decree-Law 480/99 and Articles 5 and 8 of Law 3/2011). 

Article  23  of  Law  107/2009,  which  approves  the  procedural  rules  for  administrative 
offences in relation to labour and social security, also grants trade unions legal standing to 
intervene in administrative proceedings in support of the worker. 

The  NGOPDs  (Non-Governmental  Organisations  for  Persons  with  Disability)  and  all 
organisations  defending  and  promoting  the  interests  of  persons  with  disabilities  have 
legitimacy to intervene in support of the interested party (Article 15(1) of Law 46/2006). 

More specifically, NGOs that deal with persons with disabilities (NGOPDs) are entitled to 
act  in  support  of  victims  of  discrimination,  according  to  Article  5(2)  of  Decree-
Law 106/2013, which defines the statute for NGOPDs. 

Article 5(2) of this Decree-Law provides that, where crimes have been committed against 
persons with disabilities, perpetrated on the grounds of disability, NGOPDs are entitled to 
assist and support victims in criminal procedures. 

c) 

Actio popularis 

In Portugal, national law allows associations, organisations and trade unions to act in the 
public interest on their own behalf, without a specific victim to support or represent (actio 
popularis). 

According  to  Article  52(3)  of  the  Constitution  and  Law  83/95,132  actio  popularis  in  both 
administrative  and  judicial  procedures  is  admissible  in  Portugal  in  respect  of  diffuse 
interests.  The  wording  of  those  Articles  seems  to  be  narrow  (Article  1(2)  of  Law  83/95 
refers to public health, environment, quality of life, consumer protection, cultural heritage 
and public property, merely as exemplification). However, the remit has been amplified by 
legal doctrine to cover other grounds, such as non-discrimination, that require collective 
action. 

Under Article 12(1) of Law 93/2017, associations may act in support of rights and collective 
interests. This Article stipulates: 

‘Associations  and  non-governmental  organisations  whose  statutory  object  is 
essentially aimed at preventing and combating discrimination on the grounds referred 
to  in  Article  1  shall  be  legitimately  entitled  to  propose  and  intervene,  either  in 
representation or in support of the person concerned and with his or her consent, or 
in defence of collective rights and interests.’ 

Under Article 31 of the new Civil Procedure Code, they can act in actiones populares when 
their aim is to protect unspecified persons or interests against discrimination or to protect 
fundamental rights. Article 31 also allows all citizens, associations and foundations, as well 

132  Law 83/95 (Law on Procedural Participation and Popular Action), 31 August 1995, available at: 

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=722&tabela=leis. 

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as the Public Prosecution Service, to have standing to intervene and initiate actions in order 
to protect general interests. 

Actio popularis in civil cases is permitted for NGOs only if their by-laws state the protection 
of the concerned interest as an objective. 

The prosecution of hate crimes by NGOs is considered an actio popularis if no specific victim 
exists. 

In labour law, under Article 5(1) of the Labour Procedure Code, trade unions can intervene 
to protect individual rights in general without there being an identified victim. They may 
use all types of proceedings available in the Code and the types of remedies specified by 
the Labour Procedure Code.  

In  housing,  Law  83/2019 
(Article 60(2)(a)). 

introduced  the  possibility  of  using  actio  popularis 

However, there is no long-standing tradition of using actio popularis in Portugal. 

There are no rules with regard to shifting the burden of proof. 

d) 

Class action 

In Portugal, national law allows associations, organisations and trade unions to act in the 
interest of more than one individual victim (class action) for claims arising from the same 
event.  

The  laws  distinguish  between  actio  popularis,  where  no  specific  victim  exists,  and  class 
actions,  where there are a number of complainants, and  establishes  different conditions 
for each of them. 

Class actions are possible in civil, administrative and labour procedures. 

In  labour  law,  under  Article  5(2)  of  the  Labour  Procedure  Code  only  trade  unions  can 
intervene to protect individual rights in class actions. They may bring class actions under 
Article 5(2) of the Procedure Code, which states: 

‘Legitimacy of trade unions and employers’ associations 

1. 

2. 

Trade  unions  and  employers’  associations  have  standing  as  claimants  in 
proceedings concerning rights relating to collective interests they represent. 
Trade  unions  can  also  exercise  the  right  of  class  action  on  behalf  of  workers 
and replacement as authorised: 

a. 

b. 

c. 

In  proceedings  relating  to  measures  taken  by  the  employer  against 
employees who belong to the governing bodies of the trade union or any 
office in this exercise; 
In  proceedings  relating  to  measures  taken  by  the  employer  against  its 
members who were elected as workers’ representatives; 
In class actions for the violation as a matter of generality, individual rights 
of a similar nature of their associated workers.’ 

Trade unions may use all types of proceedings available and the types of remedies provided 
by the Labour Procedure Code. 

There are no specific rules concerning the shifting of the burden of proof for class actions. 

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Trade unions and NGOs also have the right to act on behalf of one or more complainants. 
Class  actions,  in  the  sense  of  collective  actions  (actions  with  several  complainants, 
functioning on the opt-in model), are possible in civil and administrative law. 

- 

- 

Law  83/95  of  31  August  1995  (People’s  Civil  Action  –  Acção  Popular  Civil)  covers 
some kinds of class action; 
Articles 55(1)(f) and 9(2) of the Code of Procedure in Administrative Courts grants 
NGOs  some  rights  to  legal  standing  that  can  be  used  in  some  administrative 
procedures. 

6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) 

In Portugal, national law requires a shift in the burden of proof from the complainant to 
the respondent. 

According to Article 25(5) of the Labour Code, it is for the person who considers himself or 
herself  to  be  discriminated  against  to  substantiate  the  occurrence  of  the  alleged 
discrimination, only by  naming the worker or workers he or she feels are, have been or 
would  be  treated  more  favourably.  It  is  for  the  employer  to  prove  that  differences  in 
treatment are not due to any of the prohibited grounds of discrimination.  This therefore 
leads to an inversion of the burden of proof, since the employer has a duty to prove that 
the differences are not based on any of the factors referred to in Article 24(1). 

This provision applies to all the grounds of discrimination mentioned in Article 24(1) of the 
Labour Code. 

A presumption of discrimination is made once the employee can demonstrate the existence 
of a discriminatory factor and of facts that allow for such a presumption to be established. 
It  is  then  up  to  the  employer  to  prove  that  his  or  her  actions  are  not  to  be  considered 
discriminatory. 

The law has a restrictive requirement in that the rule on the shifting of the burden of proof 
may  benefit  the  worker  only  when,  besides  invoking  an  unfavourable  difference  of 
treatment, they also invoke and show elements related to the grounds of discrimination 
that they consider to be the origin of the different treatment. 

The  worker  must  indicate  in  their  claim  which  ground  is  related  to  the  difference  of 
treatment that they have suffered and must argue: a) a ground of discrimination, giving 
prima facie elements and b) a difference of treatment based on this ground. An example 
might  be  the  argument:  a)  because  he  is  of  Roma  origin,  b)  he  has  a  lower  wage  than 
other colleagues. 

If the complainant does not invoke a specific ground (according to Article 23 of the Labour 
Code) as the cause of the discrimination, the burden of proof is not shifted. 

The complainant must establish a correlation between the ground of discrimination and the 
difference in treatment, however he/she does  not have to prove  the specific  features of 
the discriminatory behaviour such as nature, quality and quantity of those differences.133 

If no facts that can be integrated into one of these categories of  discriminatory acts are 
claimed, the rule regarding the shifting of the burden of proof will not be applicable. 

133  Coimbra Court of Appeal, judgment of 13 December 2022, procedure No  574/21.2T8GRD.C1 available at: 

http://www.dgsi.pt/jtrc.nsf/c3fb530030ea1c61802568d9005cd5bb/8df24973dad568788025893500501908?
OpenDocument. 

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Indeed, the question of the onus probandi is almost uniformly addressed in the Portuguese 
case law. As indicated in the decision of the Supreme Court of Justice of 12 October 2011 
(proc. 343/04.4TTBCL.P1.S1):134  

‘this  Supreme  Court  when  called  upon  to  settle  disputes  in  which  none  of  the 
characteristic factors of discrimination (e.g. sex, age, race, etc.), has uniformly held 
that in order to conclude that there is pay discrimination between workers that is an 
offence  to  the  constitutional  principles  of  equality/equal  pay  for  equal  work,  it  is 
necessary to prove that the various workers who are paid differently perform work 
that  is  the  same  in  terms  of  nature  (difficulty,  arduousness  and  danger),  quality 
(responsibility,  exigency,  technique,  knowledge,  ability,  practice,  experience,  etc.) 
and quantity (duration and intensity)’. 

In addition, it is indicated that:  

‘only if one of these (discriminatory) factors is  alleged and demonstrated does the 
Law  presume  that  the  differentiated  treatment  resulted  from  it,  in  which  case  the 
burden of proof to the contrary falls on the employer, i.e. proof that the difference in 
treatment  was  not  due  to  the  factor  indicated,  but  to  legitimate  reasons,  among 
which are those related to the nature, quality and quantity of the work performed by 
the employees’.  

In this case, no discriminatory factor was alleged. 

National  law  also  requires  a  shift  of  the  burden  of  proof  from  the  complainant  to  the 
respondent in Law 93/2017 (Article 14(1)). That means that the victim of discrimination 
must present facts from which the occurrence of such discrimination may be inferred. It is 
up to the respondent to prove that the differences in treatment are not the result of any 
of the factors mentioned in the Law. The victim must demonstrate the act of discrimination 
and present facts to substantiate it. The defendant must show in turn that the differential 
treatment had no basis in race or ethnic origin, nationality, ancestry or territory of origin. 

Article 6(1) of Law 46/2006, which prohibits and punishes discrimination based on disability 
and on a pre-existing risk to health, provides that the victim of discrimination must present 
facts  from  which  the  occurrence  of  discrimination  on  the  grounds  of  disability  may  be 
inferred.  It  is  up  to  the  respondent  to  gather  means  of  proof  that  the  differences  of 
treatment are not based on any factors mentioned in Articles 4 and 5 (discrimination on 
the grounds of disability in work and in access to employment, in the access to and supply 
of goods and services, housing, education, sign language and transport). 

By  contrast,  this  principle  does  not  apply  to  criminal  procedures  or  to  actions  where, 
according to the law, it is up to the court or other jurisdiction to carry out the investigation. 

6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) 

In Portugal, there are legal measures for protection against victimisation. 

Article  331(1)(a)  to  (d)  of  the  Labour  Code  states  that  any  disciplinary  measure  taken 
against a worker is to be considered abusive (and therefore illegal) if it is in retaliation for 
a complaint against working conditions or for the (present) exercise, the past exercise or 
the intention to exercise or invoke rights and guarantees on the part of the employee or if 
it is in retaliation for a complaint/testimony of harassment. 

134  Available at: 

https://www.direitoemdia.pt/search/show/7d35bde971c449bf1a019c75d7444f22e6e19f8bd4bff304cd1dede
48ee2ef29. 

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Based  on  these  provisions  (and  also  on  the  provisions  set  out  in  Articles  351(1)(3)  and 
381(b)  of  the  Labour  Code),  any  kind  of  victimisation  is  considered  illegal  under  labour 
law. 

Victimisation is clearly prohibited outside of employment for the grounds of race or ethnic 
origin. This is covered by Article 13 of Law 93/2017, which states that acts of retaliation 
are null and void. It does not expressly mention witnesses, but they must be considered 
to be protected. 

There is no specific mention of protection for witnesses or for people who help a victim of 
retaliation,  but  if  retaliation  is  proven,  the  above  rules  should  be  applicable,  taking  the 
comprehensive wording of the law into account. 

6.5  Sanctions  and  remedies  (Article  15  Directive  2000/43,  Article  17 

Directive 2000/78) 

a) 

Applicable sanctions in cases of discrimination – in law and in practice 

Administrative offences (contraordenações) 

Racial  discrimination  in  general  leads  to  a  summary  administrative  offence  (contra-
ordenação). Law 93/2017 states that discrimination is a summary offence punishable by a 
fine, without prejudice to civil liability or the application of other established sanctions. 

According to Article 16(1) and (2) of Law 93/2017, fines may vary between 1 and 10 times 
the monthly value of the index of social support for individuals and between 4 and 20 times 
the same monthly value for legal persons. 

If the offence results from the omission of a duty, the application of the sanction does not 
prevent  the  offender  from  carrying  out  this  duty  if  it  is  still  possible  (Article  16(5)  of 
Law 93/2017). 

In the field of employment, according to Article 548 of the Labour Code, any violation of 
its  provisions  amounts  to  an  administrative  offence  (contra-ordenação),  for  which  an 
administrative  fine  (coima)  can  be  imposed.  Although  these  are  administrative  and  not 
criminal  sanctions,  any  dispute  of  their  validity  goes  to  civil  rather  than  administrative 
courts. 

The  Labour  Code  classifies  these  administrative  offences  according  to  their  degree  of 
gravity  as  minor  (leves),  serious  (graves)  or  very  serious  (muito  graves)  offences.  A 
violation of the provisions on equality and non-discrimination is classified as a very serious 
offence.  Other  offences  related  to  the  application  of  the  Employment  Equality  Directive 
may be classified as minor or serious offences.  

Article 554 of the Labour Code establishes the maximum and minimum value of the fines, 
including for offences based on discrimination, which depends on the company’s business 
volume, the offender’s degree of guilt and the degree of seriousness of the infraction. 

Article  24(1)  of  the  Labour  Code  refers  only  to  employers,  but  it  is  fair  to  assume  that 
under Article 548  of the  Code,  everyone (not  only employers) is liable to administrative 
sanctions  if  they  violate  the  Code’s  provisions  on  equality  and  non-discrimination,  as 
Article 548 refers to ‘any person’. 

The Labour Code specifically states that legal persons are liable to administrative sanctions. 
Employers  are  also  responsible  for  the  payment  of  administrative  sanctions  imposed  on 
their subcontractors if they cannot show that they acted with proper care (Article 551(4)). 

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A decision imposing an administrative fine for a violation of the provisions of the Labour 
Code on equality and non-discrimination can also be published (Article 562(3) and (4)). 

With regard to  sanctions for the  violation  of disability anti-discrimination provisions, the 
Labour Code specifies in Articles 548 to 555 offences that are considered to be very serious 
or  serious  in  cases  related  to  discrimination.  It  should  be  noted  that  the  criteria  that 
distinguish very serious, serious and minor offences are not clear or necessarily logical.  

For  instance,  the  Labour  Code  states  in  Article  85(3)  that  the  violation  of  Article  85(1), 
which forbids discrimination against  persons with disabilities, is a  ‘very serious offence’. 
However, in Articles 224(7) and 225(7), a violation of Articles 224(2)(4) and 225, which 
exempts workers with disabilities from night work, is a ‘serious offence’. 

If a person is found guilty of discriminatory acts more than once (recidivism), he or she 
may be liable to ancillary penalties in addition to a fine, which may include the temporary 
withdrawal  of  public  authorisation  to  carry  out  activities  in  an  enterprise,  a  ban  on 
competing for public contracts and/or the publication of the decision. 

Any discriminatory provisions included in an employment contract are, under Article 294 
of the Civil Code and Article 121(1) of the Labour Code, considered null and void and can 
be declared so by the labour courts. 

The sanctions provided by law are effective, proportionate and dissuasive, but not applied 
as often as they should be. 

Criminal sanctions 

The Criminal Code covers discrimination based on almost every ground.  

Article 240(1) imposes a punishment of imprisonment from one to eight years on anyone 
who establishes organisations or engages in organised propaganda activities that incite or 
encourage discrimination on the grounds of race, colour, ethnic or national origin, ancestry, 
religion, gender, sexual orientation, gender identity and physical or mental disability. 

Article 240(2) imposes a penal sanction of imprisonment from six months to five years on 
anyone  who,  in  a  public  meeting,  in  writing  intended  for  dissemination  or  by  any  other 
means of social communication, provokes acts of violence against an individual or a group 
of  individuals  on  the  grounds  of  their  race,  colour,  ethnic  or  national  origin,  ancestry, 
religion, gender, sexual orientation, gender identity and physical or mental disability. 

Article  240(2)  also  imposes  penal  sanctions  on  anyone,  in  a  public  meeting,  in  writing 
intended  for  dissemination  or  by  any  other  means  of  social  communication,  defames  or 
insults an individual or a group of individuals on the grounds of their race, colour, ethnic 
or  national  origin,  ancestry,  religion,  gender,  sexual  orientation,  gender  identity  and 
physical or mental disability. 

Those  who  incite  or  encourage  discrimination  are  subject  to  a  term  of  imprisonment 
ranging from six months to five years.  

Under Article 132(2)(f) of the Criminal Code on homicide, motives based on hatred on the 
grounds  of  race,  religious  or  political  convictions,  colour,  ethnic  origin  or  nationality, 
religion,  gender,  sexual  orientation  or  gender  identity  are  regarded  as  aggravating 
circumstances, resulting in a more severe penalty. Such aggravating circumstances may 
also  apply  in  cases  of  assault  causing  bodily  harm  under  Article  145(2)  of  the  Criminal 
Code.  There  is  no  general  rule  stipulating  that  such  motives  constitute  aggravating 
circumstances for all offences. This means that, for other offences, it is for the courts to 

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decide,  on  a  case-by-case  basis,  whether  racist  motives  constitute  a  circumstance  that 
should be taken into account when sentencing the offender. 

Articles  251  and  252  state  that  outrage  (affronts  and  insults)  and  trouble  and  disorder 
affecting  the  normal  provision  of  religious  services  are  crimes  punishable  with 
imprisonment of up to one year, or with a daily fine up to 120 days. ‘Daily fines’ are fines 
of between EUR 5 and EUR 500, calculated on the basis of the income of the guilty party, 
as laid down in Article 47(2) of the Criminal Code. If they are not paid, these fines can be 
converted into prison sentences. 

Article  253  criminalises  violence  or  threats  against  funeral  processions  or  ceremonies 
(cortejo ou cerimónia fúnebre), punishable with imprisonment of up to one year or a daily 
fine  up  to  120  days.  This  Article  protects  the  religious  ceremonies  involved.  Article  254 
criminalises  the  desecration  of  any  cemetery,  which  is  punishable  by  up  to  two  years’ 
imprisonment or a daily fine of up to 240 days. 

Genocide is covered by Article 8 of Law 31/2004 of 22 July. 

Civil sanctions 

Civil damages can be awarded for all types of discrimination under the general principles 
of Articles 483, 484 and 496 of the Civil Code.  

In labour law, it should be noted that Article 28 of the Labour Code expressly states that 
the occurrence of any discriminatory act gives the worker or job applicant concerned the 
right to be compensated for pecuniary or non-pecuniary damages in accordance with the 
general provisions of civil law (i.e. Articles 483, 496, 799 and 800(1) of the Civil Code). 
Under Article 500 of the Civil Code (joint and several liability), in some cases the employer 
(if the perpetrator is not the employer) may also be sued for damages, together with the 
person who is held to be legally responsible for the discrimination.  

Article 15  of Law 93/2017 also establishes that the discriminatory practice, by action or 
omission,  will  confer  on  the  aggrieved  party  the  right  to  compensation  for  material  and 
non-material  damage,  as  a  matter  of  extra-contractual  civil  liability.  It  adds  that  when 
establishing the compensation for non-material damage, the court will take into account 
the  degree  of  violation  of  the  interests  in  question,  the  economic  power  of  the  person 
causing  the  damage  and  the  conditions  of  the  injured  party.  In  contracts  that  contain 
discriminatory clauses, these will be considered null and void and the aggrieved party will 
have  the  right  to  alter  the  contract,  without  prejudice  to  compensation  for  extra-
contractual civil responsibility. Liability is also encompassed in Article 7 of Law 46/2006.  

There are no statutory limits for pecuniary or non-pecuniary (moral) damages. 

In  multiple  discrimination  cases,  the  damages  could  be  higher,  taking  the  aggravated 
conduct  of  the  perpetrator  into  account.  As  far  as  the  authors  of  this  report  are  aware, 
there is no case law applying this increase in damages.  

Non-pecuniary damages do not include interest. Pecuniary damages may, to some extent, 
include interest or take the devaluation of money into consideration, in particular where 
the passage of time is a consideration. 

Under Portuguese law,  there is no right to punitive damages.  However, the courts have 
wide discretionary powers in relation to the amount of non-pecuniary damages that they 
can award. 

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b) 

Compensation – maximum and average amounts 

There is no ceiling on the amount of compensation that can be awarded as civil damages. 
No information is available regarding the average amounts of compensation awarded to 
victims of discrimination. 

c) 

Assessment of the sanctions 

There is no information available on the amount of compensation awarded to victims. No 
court  cases  on  this  issue  have  been  reported  on  the  jurisprudence  websites  or  in  legal 
books. 

In conflicts governed by the Labour Code, compensation is awarded – for example, in the 
case  of  dismissal.  Payments  normally  correspond  to  the  amount  normally  paid  for 
unjustified dismissal. 

The  authors  have  not  found  any  court  case  indicating  the  amount  of  compensation 
awarded, and there are no studies  nor information available  on the  extent to which the 
available sanctions have been shown to be effective, proportionate and dissuasive. 

In  theory,  sanctions  should  be  effective,  dissuasive  and  proportionate.  In  practice,  they 
continue to be seldom sought or applied. 

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7  BODY  FOR  THE  PROMOTION  OF  EQUAL  TREATMENT  (Article  13  Directive 

2000/43) 

7.1  Body  designated  for  the  promotion  of  equal  treatment  irrespective  of 

racial/ethnic origin according to Article 13 of the Racial Equality Directive 

The specialised body for the promotion of equal treatment with regard to racial and ethnic 
discrimination is the High Commission for Migration (HCM) assisted by the Commission for 
Equality and Against Racial Discrimination (CEARD). 

It should be mentioned that the mandate of the HCM  seems to be broader than that  of 
CEARD,  since  Article  3  of  Decree-Law  31/2014  refers  also  to  religion,  a  criterion  that  is 
absent from Law 93/2017. 

Indeed,  according  to  Decree-Law  31/2014,  which  approves  the  organic  structure  of  the 
HCM, its mission and attributions are as follows: 

‘collaborate  in  the  definition,  execution  and  evaluation  of  public,  transversal  and 
sectorial policies regarding migration, relevant for the attraction of migrants in the 
national,  international  and  Portuguese-speaking  contexts,  for  the  integration  of 
immigrants  and  ethnic  groups,  in  particular  the  Roma  communities,  and  for  the 
management and valorisation of diversity among cultures, ethnicities and religions’ 
(Article 3). 

The HCM is a public institution integrated into the Presidency of the Council of Ministers, 
with administrative and financial autonomy and its own assets. 

The HCM carries out the duties assigned to it by the Presidency of the Council of Ministers 
under  the  supervision  and  authority  of  the  Prime  Minister  or  another  member  of  the 
Government  working  within  the  Presidency  of  the  Council  of  Ministers  (Article  1(2)  of 
Law 31/2014).  

It  is  composed  of  several  specialist  organs  such  as  the  Council  for  Migration,  the 
Consultative  Council  for  the  Integration  of  Roma  Communities,  and  CEARD,  as  well  as 
observatories (for Roma communities and for migration).135 

The  HCM  is  therefore  assisted  by  CEARD  (among  other  organs),  which  is  a  consultative 
organ  within  the  HCM,  but  which  also  has  its  own  competencies  in  accordance  with 
Law 93/2017. 

CEARD  underwent  a  restructuring  in  accordance  with  Law  93/2017.136  Law  93/2017 
repealed the former legal regime for non-discrimination on the grounds of race or ethnic 
origin, seeking a more cross-cutting and comprehensive normative approach concerning 
the  prevention,  prohibition  and  combating  of  discrimination  on  the  grounds  of  race  or 
ethnic  origin,  nationality,  ancestry  and  territory  of  origin,  and  introducing  significant 
modifications into the composition (Article 7) and the powers of CEARD (Article 8). 

CEARD promotes equality and non-discrimination on the grounds of race or ethnic origin, 
nationality, ancestry and territory of origin (Articles 1 and 8(1) of Law 93/2017), covering 
all the areas that fall under the scope of the Racial Equality Directive and work at national 
level.  

The competencies referred to in Article 13(2) of the Racial Equality Directive are therefore 
currently exercised by the HCM, assisted by CEARD. This means that the public institution 

135  See more information at: https://www.acm.gov.pt/acm/o-acm. 
136  Law 93/2017, 23 August 2017, available at: https://dre.pt/application/conteudo/108038372. 

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broadly  responsible  for  these  competencies  is  HCM,  but  most  of  them,  according  to 
Law 93/2017, are exercised though its organ: CEARD. 

According to Article 23(1) of the Constitution, citizens may also submit complaints against 
actions or omissions by the public authorities to the Ombudsman, which will assess them 
without  the  power  to  take  decisions  and  will  provide  the  competent  entities  and  bodies 
with recommendations for measures needed to prevent or make good any injustices. The 
Ombudsman’s work is independent of any non-judicial or judicial remedies provided for in 
the Constitution or the law. Government entities, bodies and agencies must cooperate with 
the Ombudsman in the fulfilment of its mission. 

The  Ombudsman has paid special attention to  certain discrimination cases.  The issue of 
racial discrimination is accorded specific attention in the Ombudsman’s inspections, such 
as those carried out in prisons, police stations and detention centres for foreign nationals 
not admitted into the country. To date, no particular areas giving cause for concern have 
been identified. 
The Ombudsman has addressed a number  of cases of  racism, in particular against non-
nationals and the Roma community, and has made recommendations to public authorities. 

The National Institute for Rehabilitation (INR) is, according to Law 46/2006 (Article 8(1)), 
the governmental office, within the Ministry of Solidarity, Employment and Social Security, 
responsible for policies for, and the promotion of the rights of, persons with disabilities. Its 
mission is to ensure the planning, execution and coordination of national policies aimed at 
promoting the rights of persons with disabilities. 

Decree-Law 34/2007 of 15 February, which regulates Law 46/2006, states that any natural 
or legal person who is aware of a situation that could be considered discriminatory practice 
on the grounds of disability (or aggravated health risk) is to report it to one of the entities 
provided  for  (Article  5(1)),  in  which  the  National  Institute  for  Rehabilitation  is  included. 
The  complaints  will  be  sent  to  the  competent  authorities  which  proceed  with  the 
administrative procedures (Article 5(2)). When the handling of administrative procedures 
is finished, the competent authorities inform the National Institute for Rehabilitation of the 
decisions  on  complaints  (Article  3(2))  and  it  produces  an  annual  report  on  acts  of 
discrimination on the grounds of disability or aggravated health risk. However, it has no 
sanctioning powers. 

Under  the  terms  of  Article  15  of  Decree-Law  164/2007  and  Article  2(1)  of  Regulatory 
Decree  1/2012,  the  Commission  for  Citizenship  and  Gender  Equality  (Comissão  para  a 
Cidadania e a Igualdade de Género – CIG) is mandated to promote equality between men 
and  women.  Under  the  same  Article  it  is  mandated  to  promote  gender  equality  more 
broadly, as well as sexual orientation137. It took over this role from the former Commission 
for  Equality  and  Rights  of  Women  (Comissão  para  a  Igualdade  e  para  os  Direitos  das 
Mulheres),  and  it  has  also  taken  on  the  functions  of  the  Commission  for  Equality  in 
Employment  and  Labour  (Comissão  para  Igualdade  no  Trabalho  e  Emprego  –  CITE)  in 
respect of the promotion of equality. 

There is no Equality Body in charge of age discrimination,  but the Authority for Working 
Conditions (Autoridade para as Condições do Trabalho – ACT) enforces anti-discrimination 
laws in the labour field including age discrimination. 

The  services  of  the  HCM  which  includes  CEARD  are  accessible  on  an  equal  basis  for  all, 
without costs.  The  same applies to other  equality bodies.  There  are no specific  rules on 
reasonable accommodation to persons with disabilities. 

137  Although sexual orientation is not mentioned in regulatory Decree 1/2012, CIG coordinates the National 

Strategy for Equality and Non-Discrimination 2018-2030 "Portugal + Igual", which integrates the Action Plan 
to combat discrimination based on Sexual Orientation, Gender Identity and Expression and Sexual 
Characteristics.  

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Although efforts have been made, even from a financial point of view, the presence and 
visibility  of  the  equality  bodies  throughout  the  national  territory  have  not  been  as 
widespread and known to the general public as would be desired. 

The fact that the designation, mandates and institutional framework of the equality bodies 
in Portugal have changed rapidly over the years also contributes to the lack of stability and 
general knowledge in respect of their existence and functions. 

7.2  Political, economic and social context of the designated body 

Since  Portugal  has  overcome  its  financial  and  public  debt  crises,  there  is  more  political 
support for the designated bodies (the HCM and CEARD). The current Government, due to 
its  own  political  left-wing  tendency  is  much  more  attentive  to  equality  and  non-
discrimination issues in general and to the equality bodies in particular. However, the role 
of the equality bodies has not increased significantly in the past years. 

To the knowledge of the authors of this report, there has been no political interference in 
the governance of the bodies, but this may be a result of the fact that these bodies have 
little  relevance  in  the  context  of  the  promotion  of  equality  and  non-discrimination. 
However,  legally  ensuring  the  independence  of  the  equality  bodies  might  be  a  way  to 
promote their visibility and their active role in social and political life. So far they are not 
independent bodies, except for the Ombudsman.138 

There is an increasing level of popular debate supporting equality and diversity. The mass 
media often discuss issues  of  equality and non-discrimination on the  grounds  of  race  or 
ethnic origin and report on situations in which equality and non-discrimination have been 
called in question. 

In contrast, there is rather less public debate about the equality bodies, due to their low 
profile. In practical terms, there is no support for nor hostility towards the equality bodies. 
Most  people  still  do  not  know  who  they  are  or  what  they  do;  the  complexity  that 
characterises the bodies that promote equality and non-discrimination is no stranger to the 
Portuguese system. 

When  issues  arise  relating  to  equality  and  non-discrimination  on  the  grounds  of  race  or 
ethnic origin, it is the member of Government responsible for equality and citizenship or 
the  members  of  Parliament  who  are  more  concerned  with  them.  The  equality  bodies 
participate in this type of debate – when it exists – only as an accessory entity. 

7.3  Institutional architecture  

In Portugal, the designated body does not form part of a body with multiple mandates. 

The  HCM  has  a  mandate  as  a  national  institution  for  migration.  When  issues  of 
discrimination on the grounds of race or ethnic origin, nationality, ancestry and territory of 
origin arise, the HCM is assisted by CEARD, as its devoted organ regarding these issues. 

The HCM is not like an ombudsman. In Portugal, the Ombudsman is a constitutional body 
(Article 23 of the Portuguese Constitution), whereas the HCM was created by legislation. 
The  Ombudsman  is  the  National  Human  Rights  Institution  and  holds  the  UN  reporting 
mandate. 

138  See section 7(d)(ii) of this report. 

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7.4  Status of the designated body – general independence 

a) 

Status of the body 

i. 

Separate or other legal status or personality 

As a public institution, according to Article 4(1) of the Framework Law on Public Institutions 
(Law 3/2004),139 the HCM is a public law legal person and has organs and its own assets. 
One of its organs is CEARD, as previously stated. 

CEARD,  which  specialises  in  equality  and  non-discrimination  on  the  grounds  of  race  or 
ethnic origin, nationality, ancestry and territory of origin, may function with an enlarged 
composition (with all members) or as a permanent or standing commission (Article 7(1) of 
Law 93/2017), composed of the President and two members designated by the commission 
(Article 7(3) of Law 93/2017). 

Ordinarily, CEARD meets once quarterly, and extraordinarily whenever it is convened by 
the High Commissioner on the recommendation of the Permanent Commission. The HCM 
is responsible for ensuring the provision of technical support and administrative facilities, 
as well as other functioning facilities (Article 9 of Law 93/2017). 

ii. 

Selection of governing body 

As in all public institutions, the governing body is designated by a joint ordinance (portaria) 
of the Prime Minister and the responsible member of the Government, following a proposal 
from  the  latter  (Article  19(3)  of  Law  3/2004).  Therefore,  the  High  Commissioner  is  not 
elected. 

CEARD  is  composed  of  the  High  Commissioner  for  Migration,  who  presides;  one 
representative of each parliamentary group; one representative from the members of the 
Government  responsible  for  internal  affairs,  justice,  equality  and  citizenship,  education, 
science,  technology  and  higher  education,  employment,  solidarity  and  social  security, 
health and culture, as well as one representative of the regional government of the Azores 
and  Madeira;  two  representatives  of  migrants’  associations,  anti-racist  associations, 
human  rights  associations,  trade  unions  and  employers’  associations;  and  one 
representative  of  Roma  communities.  Finally,  it  also  includes  three  individuals  of 
recognised merit, who are chosen by the other members (Article 7 of Law 93/2017). 

Apart from the members of Parliament, none of these members are elected.  

iii. 

Sources of funding 

The budget for the HCM comes from several sources, such as: self-generated income (i.e. 
by  payment  for  some  of  its  services,  such  as  requested  studies/reports  and  training 
activities,  and  publications);  European  Union  and  international  financing;  transfers  of 
money  from  other  national,  regional  or  international  bodies;  and  state  budgetary 
resources. 

The High Commission, assisted by CEARD (whose budget comes from the HCM), has no 
specific budget, as it is not an independent body. 

The HCM is accountable to the Court of Auditors (Tribunal de Contas) for the way in which 
it spends its budget and for expenses incurred. 

139  Law 3/2004, 15 January 2004, available at: http://data.dre.pt/eli/lei/3/2004/01/15/p/dre/pt/html. 

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iv. 

Powers to recruit and manage staff 

According to the Framework Law on Public Institutions (Article 34 of Law 3/2004) and the 
HCM statutes, included in the Administrative Rule (Portaria) 227/2015,140 the HCM has the 
power  to  recruit  and  manage  staff,  which  may  be  based  on  the  Labour  Code  or  on  the 
General Regime for Contract Work for the Public Sector, as approved by Law 35/2014141 
(Article  34(1)  of  Law  3/2004).  In  both  cases,  under  the  terms  of  Article  34(3)  of 
Law 3/2004, staff recruitment will respect the following principles: 

a. 
b. 
c. 

publicising the job offer by the most suitable means; 
equality of conditions and opportunities for candidates; 
reasons for the decision. 

v. 

Accountability (to whom and how it is exercised) 

The HCM is under the direct authority of the Prime Minister or the responsible member of 
the Government. This means that the Commissioner is in direct contact with Government 
authorities and is in a position to monitor their activities closely and to influence them. The 
same applies to CEARD. 

The  governance  structure  of  the  HCM  comprises  a  Directive  Council,  a  Single  Tax 
Supervisor and a  Council on Migration (Article 4  of  Decree-Law 31/2014). The Directive 
Council comprises the High Commissioner, who presides, and another member (Article 5 
of Decree-Law 31/2014). The Single Tax Supervisor is the body responsible for monitoring 
the legality, regularity and financial and patrimonial management of the HCM (Article 7 of 
Decree-Law  31/2014  and  Article  26  of  the  Law  3/2004  –  the  Framework  Law  on  Public 
Institutions). The Council on Migration is the body that provides consultation and support 
and participates in the definition of the general lines of action of the HCM and the decision-
making of the Directive Council, ensuring the participation and collaboration of public and 
private entities in the definition and implementation of migration policies (Article 8(1)  of 
Decree-Law 31/2014). 

b) 

Independence of the body 

The  independence  of  the  equality  body  is  not  stipulated  in  law,  since  it  is  not  an 
independent administrative entity. The HCM’s powers are set out in Decree-Law 31/2014, 
and  there  is  no  guarantee  of  its  independence  from  the  Government.  It  must  be 
emphasised  that,  from  a  legal  point  of  view,  the  equality  bodies  are  not  independent, 
except for the Ombudsman, although they have a broad degree of autonomy in exercising 
their legal competencies. 

The  High  Commissioner  and  CEARD  work  under  the  authority  of  the  Prime  Minister.  In 
practical terms, interference by political powers may be slight (or even non-existent, since 
the authors of this report could not find any reports on such influence), but it cannot be 
said that the bodies work independently of the Government. 

In the opinion of the authors, the HCM (and naturally its organs) is not an independent 
body, although there are so far no reasons to believe that it does not exercise its activities 
independently. 

140  Administrative Rule 227/2015 (Portaria 227/2015), 3 August 2015, available at: 

http://data.dre.pt/eli/port/227/2015/08/03/p/dre/pt/html. 

141  Law 35/2014, establishing the regime for employment relations in public services, 20 June 2014, entered 

into force on 1 August 2014 (last amended by Law 84/2015, 7 August 2015), available at: 
https://dre.pt/web/guest/pesquisa-avancada/-
/asearch/25676932/details/maximized?search=Pesquisar&sortOrder=ASC&tipo=%22Lei%22&types=SERIEI
&numero=35%2F2014. 

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However,  given  the  fact  that  support  to  refugees  from  Ukraine  was  very  debated,  the 
General Budget for 2022 included a provision under which the Government will ascertain 
the possible connections between persons included in Annex I of Regulation (EU) 269/2014 
and the registered representative associations of the Ukrainian Community that take part 
in the electoral college of the HCM (Article 277 of Decree-Law 12/2022, of 27 June).142 

c) 

Resources 

- 

- 

- 

- 

For 2022. The budget was increased to EUR 19 401 126 (in 2021, the Budget was of 
EUR 18 242 089),143 according to the Activity’s Plan of the HCM for 2022.144 30 % 
will come from national financing, 55 % from European Union Financing and 15 % 
from transfer between public entities. 
In the activity plan for 2022 no indication is given on the annual budget dedicated to 
the equality body mandate (specifically on non-discrimination issues disaggregated 
from the more general activities of migration). 
In  December  2021,  the  HCM  had  a  total  of  173  employees  with  an  employment 
contract  in  public  functions  and  34  employees  with  temporary  contracts  based  on 
cooperation protocols, which represents a total of 207 workers that is an increase of 
30  resources  compared  to  that  held  in  December  2020.145  Despite  the  significant 
increase in the staff map, the human resources needs in view of the volume of work 
remains and the hiring of another 16 workers with employment contracts for 2022 
has  been  requested  and  approved  (nonetheless  the  Activity’s  Plan  of  the  HCM  for 
2022 talks, as a whole, of only 194 workers). 
No data for 2022. According to the 2021 Activities Report of the HCM, the number of 
staff dedicated to the equality body mandate, in particular the CEARD scope of action, 
was only seven persons (and one for the Observatory of Roma Communities). 

7.5  Grounds covered by the designated body 

The  HCM  deals  with  equality  and  non-discrimination  not  only  on  the  grounds  of  race  or 
ethnic origin, but also on the grounds of colour, nationality and religion. 

According to Article 3 of Decree-Law 31/2014, the mission of the HCM comprises working 
on the definition, implementation and evaluation of public policies and sectoral policies on 
migration that are relevant to attracting migrants in national, international and Lusophone 
contexts, and contributing to the integration of immigrants and ethnic groups, in particular 
the Roma communities, and the management and evaluation of diversity among cultures, 
ethnicities and religions. 

Therefore, this equality body is more oriented towards discrimination against migrants than 
towards  equality  and  non-discrimination  on  the  grounds  of  race  in  general.  In  practice, 
discrimination against migrants is its priority issue, as evidenced by the powers listed in 
Article 3(2) of Decree-Law 31/2014 (mentioned above). 

CEARD is the specialised body for equality and non-discrimination on the grounds of race 
or  ethnic  origin,  colour,  nationality,  ancestry  and  territory  of  origin,  according  to  its 
mandate as defined in Law 93/2017. 

142  Available at: https://www.base.gov.pt/Base4/media/xd3frgyu/lei-12_2022-orcamento-de-estado.pdf. 
143  According to the 2021 Activity’s Report of the HCM, available at: 

https://www.acm.gov.pt/documents/10181/43252/ACM-Relatorio-Atividades-2021.pdf.pdf/38ae01b5-a876-
496b-a218-c30eb9b52b37. 

144  Plan available at: 

https://www.acm.gov.pt/documents/10181/224827/Plano_Atividades_ACM_2022.pdf/828b5b32-cc8f-44ef-
9868-fa22b3b725f5. 

145  According to the 2021 Activities Report of the HCM. 

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7.6  Competencies of the designated body – and their independent exercise 

a) 

Independent assistance to victims 

In Portugal, the HCM has the  competence to provide independent assistance to victims, 
including to provide victims of discrimination with information necessary for the defence of 
their rights; to guide the parties, provided they give their consent, for mediation processes, 
without prejudice to non-judicial means of conflict resolution that are required by law; and 
to  receive  complaints  and  open  administrative  sanctions  proceedings  (processos  de 
contraordenação). 

According to Article 8(2) of Law 93/2017, these competencies are exercised by CEARD. 

Although  not  much  information  is  available  on  how  the  equality  bodies  exercise  these 
competencies, the authors assume that they are exercised, both by the HCM and CEARD, 
in an autonomous way, without concrete interference from the Government. 

However, it should be highlighted that the HCM, and also CEARD, have no competence to 
assist victims in judicial procedures, which could be more sensitive from a political point of 
view. No assistance to victims is exercised by a third party, for instance at a local level. 

b) 

Independent surveys and reports 

In  Portugal,  according  to  the  law,  the  HCM  can  generally  carry  out  surveys  and  publish 
reports  in  issues  relating  to  migration  (in  particular  under  Article  3(2)(i)(n)  of  Decree-
Law 31/2014). 

The  HCM  has  previously  commissioned  academic  experts  to  conduct  surveys  on 
discrimination and related issues and set up the Observatory for Immigration146 and the 
Observatory for Roma Communities147 which are composed of representatives of academic 
institutions and guarantees the scientific standards of the surveys.  

With  particular  relevance  to  the  scope  of  this  report,  CEARD  also  has  competencies  to 
promote studies and research on discrimination based on the factors listed in Law 93/2017 
(Article 8(2)(f)) and also to produce statistical information on a periodical basis (Article 8 
(2)(m)). 

In addition, it is up to CEARD to prepare an annual report on the situation of equality and 
non-discrimination  on  the  basis  of  the  factors  listed  in  Article  1,  including  information 
collected on discriminatory practices and sanctions applied, as well as the assessment of 
the  impact  of  measures  taken  on  men  and  women,  for  this  purpose  liaising  with  the 
Commission for Citizenship and Gender Equality and the Commission for Equality in Labour 
and Employment (Article 8(4)).  

To  our  knowledge  and  from  the  information  provided  in  the  HCM  and  CEARD  websites, 
there is no strategic planning regarding discrimination issues. It should also be added that 
most of the plans and reports are adopted and divulged with incomprehensible delay, which 
prejudices the relevance of these equality bodies. 

c) 

Recommendations 

The  HCM may generally combat all forms  of discrimination based  on  colour, nationality, 
ethnic origin or religion, regardless of the environment in which they occur, through public 
awareness actions, campaigns or events (Article 3(2)(l) of Decree-Law 31/2014). 

146  See Observatory for Immigration website, available at: www.oi.acidi.gov.pt/. 
147  See Observatory for Roma Communities website, available at: https://www.obcig.acm.gov.pt/. 

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However,  it  is  CEARD  that  has  the  competence  to  make  specific  recommendations  on 
discrimination issues. According to Article 8(2)(d) of Law 93/2017, CEARD may recommend 
the adoption of legislative, regulatory and administrative measures as it deems appropriate 
for  the  prevention,  prohibition  and  combating  of  discrimination  on  the  grounds  of  race, 
ethnic origin and nationality, and may make recommendations to the Government on any 
related matter. 

In  2019,  CEARD  made  a  public  recommendation  concerning  the  rise  of  xenophobic 
discourse  in  the  media.148  Other  recommendations  and  communications  are  available 
online,149  but  it  is  fair  to  say  that  CEARD  does  not  use  these  competencies  in  a  broad 
manner. Nonetheless, it issues more opinions in individual cases more frequently (in the 
form of communications). 

With regard to independence, recommendations are in practice proposed in an independent 
manner. 

d) 

Prevention, promotion and awareness-raising 

Specifically on the competencies of the HCM, under Article 3 of Decree-Law 31/2014, HCM 
will: fight any forms of discrimination on the grounds of race, skin colour, nationality, ethnic 
origin or religion, through positive awareness, education and training activities, and also 
via the applicable sanctions specified in law; raise public awareness and sponsor studies 
on  immigration,  ethnic  minorities,  intercultural  dialogue  and  inter-religious  dialogue; 
promote  dialogue  between  religions  through  increased  knowledge  of  other  cultures  and 
religions and the promotion of an attitude of mutual respect and regard for diversity both 
within the national borders and in Portugal’s relations with the rest of the world. 

According to Law 93/2017, for the purpose of promoting equality and non-discrimination, 
it  is  incumbent  upon  CEARD  to  promote  education,  training,  and  awareness-raising  on 
human  rights  and  to  prevent  and  fight  discrimination  on  the  grounds  listed  in  Article  1 
(Article 8(2)(n)). 

From the authors’ point of view, this competence is effectively exercised in an independent 
manner, in practice, and it is one of the main activities of the HCM, under protocols passed 
with civil society organisations and also with close contact with their representatives under 
observatories and working groups established. 

e)  Other competencies 

CEARD also has other competencies, according to Article 8 of Law 93/2017, for instance: 

- 

- 

- 

to promote the establishment of codes of good practice in combating discrimination 
on the grounds indicated in Article 1 of Law 93/2017; 
to  propose  measures  aimed  at  removing  provisions  laws,  regulations  and 
administrative provisions against the principle of equality and non-discrimination; 
to articulate with the competent bodies in the field of discrimination on the grounds 
other  than  those  indicated  in  Article  1  of  Law  93/2017,  in  cases  of  multiple 
discrimination. 

148  Lusa, ‘Comissão para Igualdade chama televisões e jornalistas face a aumento de discurso xenófobo’, 

Publico Online, 25 January 2019, available at: 
https://www.publico.pt/2019/01/25/sociedade/noticia/comissao-igualdade-chama-televisoes-jornalistas-
face-aumento-discurso-xenofobo-1859427. Other recommendations and social interactions are available at: 
https://www.cicdr.pt/-/outros. 

149  See: https://www.cicdr.pt/-/comunicados-cicdr. 

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7.7  Legal standing of the designated body 

In Portugal, the designated body (the HCM) has no legal standing to bring discrimination 
complaints  on  behalf  of  either  identified  victims  or  victims  who  are  not  identified.  In 
addition, the HCM has no legal standing either to bring discrimination complaints to court 
ex officio or to intervene in legal cases concerning discrimination, such as through amicus 
curiae. The same is applicable to CEARD. 

However, in accordance with Article 11 of Law 93/2017, any dispute emerging from the 
application of this Law can be resolved through a mediation procedure, which is initiated 
by CEARD or at the request of the parties, and with the consent of the offender and the 
victim or their legal representatives. 

Also,  CEARD  does  not  have  the  power  to  refer  a  case  to  a  court  of  law  if  mediation  is 
unsuccessful.  Claimants  must  seek  judicial  redress  themselves  –  for  instance,  in 
employment cases. 

7.8  Dispute resolution 

a)  Quasi-judicial functions 

The  HCM and  CEARD are not quasi-judicial institutions. They are public institutions with 
powers to conduct procedures in order to impose administrative  fines, but this does not 
make  them  quasi-judicial  institutions,  since  the  term  is  used  only  for  independent 
administrative entities (such as regulatory entities), which is not the case with the HCM 
and CEARD. 

The CEARD can issue binding enforceable decisions. The CEARD cannot issue non-binding 
opinions. 

Power to impose sanctions 

i. 

Power to impose sanctions 

According to Article 8(2)(k) of  Law 93/2017, CEARD has the power to impose fines and 
ancillary penalties in the context of administrative offence proceedings. 

The competence for initiating the proceedings belongs to the President of the Commission, 
who is the High Commissioner for Migration and is empowered with the instruction of the 
proceeding. This proceeding is to respect the due process of law (Articles 20-21). 

ii. 

Nature and level of sanctions that can be imposed 

Any  discriminatory  practice  by  a  natural  person  constitutes  an  administrative  offence 
punishable  by  a  fine  of  between  1  and  10  times  the  value  of  the  Social  Support  Index. 
(Article 16(1)). Any discriminatory practice by a public or private legal person, under the 
terms of Article 4, will  constitute an administrative offence punishable by a fine ranging 
from 4 to 20 times the value of the social support index (Article 16(2)). 

The  fines  provided  may  be  replaced  by  admonitions  where  the  reduced  gravity  of  the 
discriminatory practice and the culpability of the offender so justify, without prejudice to 
the application of ancillary penalties (Article 16(7)). 

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iii. 

Possibility to appeal 

Since  the  penalties  are  of  administrative  nature,  appeal  to  CEARD  itself  is  possible 
according to the Code of Administrative Procedure. Its decisions may also be appealed in 
the courts. 

iv. 

Enforcement of binding decisions 

If  sanctions  are  not  appealed  to  courts,  they  must  be  complied  with,  and  execution 
procedures may ensue. The number of sanctions that has been imposed is nonetheless not 
very  high,  and  in  less  serious  cases  a  fine  can  be  substituted  by  an  admonition,  which 
raises concerns regarding the effectiveness of such sanctions. 

According to Article 8(c) of Law 93/2017, CEARD is responsible for making public, through 
all means at its reach, the cases of effective breach of the law. 

Article 15(4) and Article 24 of Law 93/2017 define that the HCM should maintain a record 
of discriminatory acts and sanctions applied, in order to raise awareness among the public 
of  matters  of  equality  and  non-discrimination  and  the  prevention  of  discrimination.  This 
record,  maintained  for  a  period  of  five  years,  should  include  at  least  the  identity  of  the 
convicted person (if a natural or a legal person); information on the type and nature of the 
discriminatory practice; and the fines and ancillary sanctions imposed. 

v. 

Implementation of non-binding opinions 

Not applicable. 

b) 

Amicable settlements 

According to Article 8(2)(h) of Law 93/2017, one of the competencies of CEARD is to ‘refer 
the parties, once they have given their consent, to mediation processes, without prejudice 
to  extrajudicial  means  of  conflict  resolution  that  are  mandatory  under  the  terms  of  the 
law’. Under Article 11 of Law 93/2017, any dispute may be resolved through a mediation 
procedure at the instigation of the Commission or at the request of the parties, and with 
the consent of the offender and the victim or their legal representatives. The mediator of 
the dispute is an independent and impartial third person whose main function is to facilitate 
communication, chosen by agreement between the parties and qualified with a mediation 
course in the criminal area taught by an entity certified by the Ministry of Justice. 

This  means  that  mediation  is  explicitly  seen  as  a  way  to  promote  good  practices  and 
reconciliation in non-discrimination  cases. Despite this, CEARD does not have mediation 
competencies as such (it is not an entity that can act as a mediator body), but can merely 
refer to the existing mediation procedures. 

7.9  Procedural safeguards 

There are no procedural safeguards established in the Portuguese Legislation once CEARD 
does not act itself as a mediator but may only advise on the use of mediation. 

7.10 Data collection by the designated body 

a) 

Registration of complaints and decisions  

In Portugal, the equality bodies register the number of complaints received and decisions 
made by ground, field and type of discrimination (Article 24 of Law 93/2017). 

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According to the 2021 Report on Equality and Non-Discrimination,150 the latest available, 
408  complaints  were  received  by  CEARD,  representing  a  decrease  of  around  37.7  % 
compared with 2020, when 655 complaints were filed. Of those complaints, 63.7 % concern 
situations directed at specific and determined persons (representing a significant increase 
compared with 2020), while 24.8 % concern discriminatory practices allegedly directed at 
communities or social groups. 

As far as the areas of discrimination are concerned, situations related to provision of goods 
and services are the areas with the highest number of complaints (15.0 %), followed by 
situations on the internet or social media (14.7 %) and the labour market (7.1 %). Of the 
408 complaints received by CEARD, the majority were  against private entities (34.6 %). 
Complaints against the public sector are less significant, at 21 %, and concern particularly 
security forces, municipal councils and other public services. 

Regarding the grounds of discrimination, the most identified factor of discrimination was 
nationality (39.2 %), followed by ‘skin colour’ (17.2 %), and race and ethnic origin (16.9 
%).  Only  0.7  %  of  the  complaints  were  related  to  situations  of  discrimination  on  the 
grounds  of  territory  of  origin  and  only  3.9  %  related  to  multiple  discrimination.  In  the 
complaints  received  by  CEARD,  the  specific  ground  that  stood  out  more  as  a  basis  for 
discrimination was ‘Brazilian nationality’ (26.7 %), representing an increase compared with 
previous  years,  followed  by  ‘Roma  ethnicity’  (16.4  %)  and  ‘black/black  skin  colour’ 
(15.9 %). 

Of the set of complaints registered by CEARD, it examined 196 complaints itself, while 212 
were  subsequently  forwarded  to  other  entities  due  to  their  specific  competence  in  the 
matter, such as the Commission for Citizenship and Gender Equality (CIG) and the National 
Institute for Rehabilitation (INR). Of the 196 complaints examined by CEARD, 85 (17.9 % 
of  the  total  number  of  complaints  received)  gave  rise  to  administrative  offence 
proceedings,  representing the highest number  since the creation of the Commission.  72 
(17.6  %)  of  the  complaints  were  archived  due  to  lack  of  evidence/information  and  39 
(9.6 %)  await  clarification.  CEARD  considers  that  the  higher  number  of  administrative 
offence proceedings denotes greater capacity to formulate more complete complaints on 
the part of the alleged victims, as well as on the part of others who had knowledge of or 
witnessed alleged discriminatory practices. 

b) 

Equality data collection 

In Portugal, HCM and CEARD do not collect general equality data and there is no record 
that they access data collected by other entities that is not available to the general public. 

7.11 Roma and Travellers 

The specialist body in Portugal (the HCM) considers the Roma to be a priority issue.  

The HCM is seeking to stimulate the interest and participation of Roma citizens in legislation 
related  to  street  trading,  including  the  experience  of  other  countries  in  this  matter,  the 
sizes of fines, the creation of specific places for street trading and town councils’ awareness 
of street trading issues, as well as the training needs of the Roma; the need for support 
from social services for the integration of Roma families into society; measures for positive 
discrimination; and the difficulties that members of the Roma community experience with 
integration into the Portuguese labour market, among other matters. 

For this purpose a Consultative Commission for the Integration of Roma Communities and 
an Observatory for Roma Communities was established. 

150  Available at: https://www.cicdr.pt/documents/57891/574449/Relatório+Anual+2021+-

+CICDR.pdf/30d474c4-a771-4c23-b8ea-436d3cc971e6. 

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The  HCM  also  intends  to  rely  on  the  use  of  intercultural  mediators  to  achieve  greater 
integration of this ethnic group.  

The level and nature  of engagement by the equality bodies with Roma associations and 
migrants’ associations is the most visible area of engagement; it involves many activities, 
including cultural ones. 

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8 

IMPLEMENTATION ISSUES  

8.1  Dissemination  of  information,  dialogue  with  NGOs  and  between  social 

partners 

a)  Dissemination of information about legal protection against discrimination (Article 10 

Directive 2000/43 and Article 12 Directive 2000/78) 

The  HCM  provides  information  on  its  website  about  discrimination  in  general  and 
discrimination on the grounds of race or ethnic origin specifically. The same happens with 
CEARD. 

In  respect  of  labour  matters,  Article  24(4)  of  the  Labour  Code  imposes  on  employers  a 
duty to display on their premises information on the rights and duties of workers in relation 
to  equality  and  non-discrimination.  However,  the  dissemination  of  information  against 
discrimination in workplaces has not been very visible so far. The law does not specifically 
require employers to provide  information in a form that is accessible to all  persons with 
disabilities. Trade unions provide information in an accessible way.  

das 

Relações 

The Directorate-General of Employment and Labour Relations (Direcção Geral do Emprego 
e 
its  website 
(https://www.dgert.gov.pt)  on  national  policy  measures  in  this  field,  as  well  as  on 
European Union actions to combat discrimination. It also makes the relevant documents 
available. 

information 

Trabalho) 

provides 

on 

de 

b)  Measures to encourage dialogue with NGOs with a view to promoting the principle of 
equal treatment (Article 12 Directive 2000/43 and Article 14 Directive 2000/78) 

Several Government agencies and the HCM are engaged in dialogue with NGOs in order to 
promote  the  principle  of  equal  treatment.  Some  NGOs  –  for  instance,  SOS  Racismo, 
Solidariedade Imigrante and Associação Portuguesa de Deficientes – receive funds in order 
to develop activities in this area. NGOs are represented in several commissions.  

The HCM promotes and engages in dialogue with NGOs that work with the Roma and with 
several Roma associations. This means that it is acquainted with the major problems that 
the Roma community still faces in Portugal. 

Above all, the HCM’s activities take the form of encouragement, in the sense of promoting 
the  work  of  association  leaders  and  making  them  responsible  for  the  work  carried  out; 
increasing  the  level  of  dynamism  of  associations  and  their  membership  levels;  and 
promoting  adherence  to  what  their  communities  require  of  associations,  as  well  as 
acknowledging the difficulties experienced by the community in general. For instance, the 
HCM has established the CLAIM network (a local network for providing proximity support 
to immigrants) with 154 offices and a mobile CLAIM unit working in close association with 
municipal entities and associations. 

c)  Measures to promote dialogue between social partners to give effect to the principle 
of  equal  treatment  within  workplace  practices,  codes  of  practice,  workforce 
monitoring (Article 11 of Directive 2000/43 and Article 13 of Directive 2000/78) 

Dialogue  between  social  partners  takes  place  within  several  commissions  and  bodies, 
ensuring the participation of associations representing immigrants, human rights activists, 
trade unions, employers’ associations and social solidarity institutions in the development 
of policies promoting social integration and combating exclusion, such as: 

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- 

- 

- 

- 

- 

- 

Commission for Equality and Against Racial Discrimination (CEARD) (Comissão para 
a Igualdade e contra a Discriminação Racial – CICDR) – mentioned above; 
Commission  for  Religious  Freedom  (Comissão  da  Liberdade  Religiosa  –  CLR). 
(Article 52  ff.  of  Law  16/2001,  amended  by  Law  91/2009  –  Law  on  Freedom  of 
Religion); 
National Institute for Rehabilitation (Instituto Nacional para a Reabilitação – INR)151 
(Decree-Law 217/2007); 
National  Council  for  the  Rehabilitation  and  Integration  of  Persons  with  Disabilities 
(Conselho Nacional para a Reabilitação e Integração das Pessoas com Deficiências –
CNRIPD) (Article 1 of Decree-Law 225/97); 
Permanent Council for Social Dialogue (Conselho Permanente de Concertação Social 
– CPCS) (Decree-Law 74/84); 
Economic and Social Council (Conselho Económico e Social – CES) (Article 92 of the 
Constitution). 

The workers’ commissions (Comissões de Trabalhadores), their coordinating commissions 
(Comissões  Coordenadoras),  trade  unions  and  employers’  organisations  may  advise  on 
proposed legislation that affects the rights and duties of employers and employees, before 
it is approved (Article 470 of the Labour Code). 

According  to  Article  471  of  the  Labour  Code,  the  Permanent  Commission  for  Social 
Dialogue, which is composed of representatives of trade unions, employers’ organisations 
and  the  state,  and  is  part  of  the  Economic  and  Social  Council,  may  also  give  advice  on 
proposed 
in  accordance  with  Article  11  of 
Directive 2002/14/EC, which covers social dialogue. 

legislation.  These  procedures  are 

d) 

Addressing the situation of Roma and Travellers  

There is no specific body or organ appointed at a national level to address Roma issues. 
Nonetheless,  within  the  national  Roma  communities  strategy,  an  Observatory  for  Roma 
Communities  was  created  under  the  scope  of  the  HCM  in  order  to  further  investigation, 
publications, events and partnerships in the field. 

A number of Roma and non-Roma associations are attempting to build bridges between 
the majority in society and Roma communities, and they are actively looking for solutions 
to  the  main  problems  encountered  by  their  communities  all  over  the  country.  A  Roma 
monitoring  group  (Consultative  Council  for  the  Integration  of  Roma  Communities)  was 
created,  sponsored  by  the  HCM,  with  the  objective  of  running  a  cooperation  and 
coordination  platform  to  protect  and  support  the  Roma  population  as  a  whole,  with 
information programmes to prevent children working as beggars. 

Initiatives have been taken by  NGOs and the IEFP to train Roma  – particularly younger 
members of the community – for employment. Racist prejudices still persist among certain 
employers, which mean that the Roma suffer racial discrimination in recruitment as well 
as in other spheres of social life. The ongoing programmes and initiatives tend to narrow 
this gap between the rest of the population and the Roma communities. 

8.2  Measures  to  ensure  compliance  with  the  principle  of  equal  treatment 

(Article 14 Directive 2000/43, Article 16 Directive 2000/78) 

a) 

Compliance of national legislation (Articles 14(a) and 16(a)) 

Portugal  has  taken  the  necessary  measures  to  ensure  that  any  laws,  regulations  and 
administrative provisions contrary to the principle of equal treatment are abolished. 

151  See: National Institute for Rehabilitation (Instituto Nacional para a Reabilitação) website, available at: 

www.inr.pt/. 

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This  is  especially  true  in  the  area  of  employment,  but  also  in  other  fields  of  social  and 
economic life such as housing, education and access to social advantages. 

Alongside the  fact that  most  of the framework  legislation adopted over the past decade 
makes explicit reference to the principle of non-discrimination, Article 13 of the Portuguese 
Constitution provides the structural base for a full and all-encompassing legal framework 
against discriminatory behaviour. 

According to Article 204 of the Constitution, all courts and tribunals must refuse to enforce 
any  rules  deemed  to  be  unconstitutional.  Therefore,  all  judicial  organs  may  analyse  the 
conformity of all kinds of behaviour with the non-discrimination principle. However, cases 
going to court are scarce and in some of them discrimination is not invoked by the plaintiff 
(or not invoked properly). 

It should be noted that Law 93/2017 adopted by the Portuguese Parliament was subject 
to a legislative procedure in which a technical note was produced (22 March 2017)152 that 
assessed  the  need  to  comply  with  the  EU’s  enforcement  requirements.  However,  no 
thorough assessment of compliance with the Directives was done. 

b) 

Compliance of other rules/clauses (Articles 14(b) and 16(b)) 

All contracts, collective agreements and other rules that conflict with the principle of equal 
treatment can be declared null and void by the courts. Any discriminatory clause in such 
contracts that contravenes the provisions of the Labour Code is to be considered invalid. 

Moreover,  Article  7(2)  of  the  Labour  Code  states  that  provisions  contained  in  collective 
agreements that are already in force and contrary to the provisions set out in the Labour 
Code have to be replaced within one year of the enactment of the statute or be considered 
null and void. 

Other provisions that may be included in future contracts, collective agreements, internal 
rules  of  undertakings,  rules  governing  independent  occupations  and  professions  (if 
applicable)  and  rules  governing  workers’  and  employers’  organisations,  to  the  extent  to 
which they may breach the equality and non-discrimination provisions of the Labour Code, 
will of course also be invalid. They are to be so deemed by those bound by them and can 
be so declared by  any  court, as provided for either by the general  rules  of contract law 
(e.g. Articles 285 et seq. of the Civil Code) or by the provisions of the Labour Code itself 
(under Article 478(1)(a) of the Code, collective agreements cannot go against ‘imperative 
legal provisions’). 

152  See: 

http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c324679626d56304c334e70644
7567a4c31684a53556c4d5a5763765130394e4c7a464451554e45544563765247396a6457316c626e527663
306c7561574e7059585270646d46446232317063334e68627938344d5463785a6d5a6c597930345a5751324
c545268597a51744f4451794d4331694d4441344e5463304d5449784f4467756347526d&fich=8171ffec-
8ed6-4ac4-8420-b00857412188.pdf&Inline=true. 

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9  COORDINATION AT NATIONAL LEVEL 

The  office  of  the  HCM  has  responsibility  for  issues  relating  to  immigration  and  ethnic 
minorities,  and  is  under  a  duty  to  combat  racism,  but  it  has  no  responsibility  for 
coordinating other bodies working in this area. 

The Authority for Working Conditions, formerly the General Labour Inspectorate, deals with 
some anti-discrimination issues, but it does not have responsibility for coordination either. 
The same can be said for the National Institute for Rehabilitation. 

Within  the  Ministry  of  Justice,  the  Legislative  Policy  and  Planning  Office  (Gabinete  de 
Política Legislativa e Planeamento – GPLP) is responsible for planning the implementation 
of directives and other EU instruments, but at a formal rather than substantive level. The 
Ombudsman,  as  an  autonomous  authority  independent  from  Government,  cannot  exert 
any coordination over Government-based bodies. 

There  are  several  municipal  anti-racism  and  anti-discrimination  plans  in  Portugal,  which 
means that municipalities, at a local level, also have some competencies, albeit limited, 
with regard to non-discrimination.  

Therefore, a variety of entities with somewhat fragmented responsibilities in the areas of 
equality and non-discrimination exist, and the coordination of their activities is not as clear 
as would be desirable,  which  runs contrary to  the transversal and global nature of anti-
discrimination policy. 

Indeed, Portugal traditionally adopts a ‘unitary’ perspective – not intersectional – according 
to  which  each  discriminatory  factor  is  regulated  by  totally  different  entities,  laws  and 
policies.153 It is mainly through obligations for sharing of data and information, as well as 
by  adopting  plans  that  are  under  the  same  ‘strategic  umbrella’,  that  coordination  is 
achieved – at least to an acceptable level – in Portugal. 

Concerning  plans  relevant  to  the  scope  of  this  Report,  in  2018,  the  Council  of  Ministers 
adopted a resolution154 to approve the strategy Portugal + Equal – National Strategy for 
Equality  and  Non-Discrimination  2018-2030,  which  is  the  main  strategic  instrument 
regarding equality and  non-discrimination in  Portugal.  This  National  Plan is dedicated to 
three  main  fields:  equality  between  men  and  women  (IMH);  violence  against  women, 
gender  violence  and  domestic  violence  (VMVD);  and  discrimination  on  the  grounds  of 
sexual  orientation,  gender  identity,  gender  expression  and  sexual  characteristics.  In 
relation  to  the  third  pillar,  the  Plan  intends  to  promote  the  mainstreaming  of  non-
discrimination issues related to LGBTI persons and to fight all forms of violence based on 
sexual  orientation,  gender  identity,  gender  expression  and  sex  characteristics  (OIEC  or 
SOGIESC  in  the  international  terminology).  The  latest  monitoring  report  of  this  plan 
regarding OIEC dates from 2020.155 

After  the  approval  of  this  national  strategy,  the  Municipality  of  Lisbon156  approved  the 
municipal plan LGBTI+ (2020-2021) which is a structured policy strategy to implement a 
set of municipal public policies for the promotion and defence  of human rights of LGBTI 
people in the area of health, education, employment, housing, etc. In 2022 the municipality 

153  See Alba A., ‘A introdução da interseccionalidade em Portugal: Repensar as políticas de igualdades’, Revista 

Crítica de Ciências Sociais [Online], 90, 2010, DOI : 10.4000/rccs.1760. 

154  Council of Ministers, Resolution 61/2018, 8 March 2018, Diário da República, Série I-A, No. 97, 21 May 

2018. 

155  Available at: https://www.cig.gov.pt/wp-content/uploads/2021/07/Relatorio-Intercalar-de-Monitorizacao-

2020-PAOIEC.pdf. 

156  Available at: 

https://cidadania.lisboa.pt/fileadmin/download_center/notificacoes/anuncios/Anuncio_2_CML_Plano_Municip
al_LGBTI_2020.pdf. 

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started  to  prepare  a  second  plan  to  continue  to  support  the  integration  of  lesbian,  gay, 
bisexual, trans and intersex people.157  

In 2020, the Resolution of the Council of Ministers 71/2020 of 15 September approved the 
eighth generation of the Choices Programme (Programa Escolhas) for the period 2021 to 
2022,158 with the mission of promoting social integration, equal opportunities in education 
and  employment,  combating  social  discrimination,  promoting  civic  participation  and 
strengthening social cohesion. The programme is aimed at all children and young people, 
in particular those from backgrounds of socio-economic vulnerability.159 

Regarding specific anti-racism strategies, three strategies are now in place: 1) the National 
Plan to combat racism and discrimination 2021-2025; 2) the National Roma Communities 
Integration Strategy 2013-2020, and 3) the Plan for the Prevention  of Manifestations  of 
Discrimination in the Security Forces, which has a broader scope but integrates a particular 
focus on racism. 

The  ‘National  plan  to  combat  racism  and  discrimination  (PNCRD)  2021-2025  –  Portugal 
Against Racism’, was published by the Resolution of the Council of Ministers 101/2021 of 
28 July 2021.160 The resolution acknowledges the work of various civil society agencies on 
this important issue, and the contributions and recommendations of the Working Group for 
the Prevention and Combating of Racism and Discrimination (coordinated by ACM, the High 
Commission  for  Migration)  and  a  related  public  consultation  process.  This  is  the  first 
national plan on racism and discrimination, and was the result of intensive inter-sectoral 
collaboration.  The  document 
transversal  principles: 
is  organised  around 
deconstruction of stereotypes; coordination, integrated governance and territorialisation; 
integrated  intervention  in  the  fight  against  inequalities;  and  intersectionality.  These 
principles  cover  10  areas  of  intervention:  governance,  information  and  knowledge; 
education and culture; higher education; work and employment; housing; health and social 
action;  justice,  security  and  rights;  participation  and  representation;  sports;  and  media 
and digital. 

four 

The National Roma Communities Integration Strategy 2013-2020 was prorogated by the 
Resolution  of  the  Council  of  Ministers  154/2018  of  29  November  2018161  and  it  is  now 
applicable  until  the  end  of  2023.162  This  strategy  is  based  on  the  guiding  principles  of 
interculturality,  non-discrimination,  cooperation  and  participation,  territorialisation  and 
equality between women and men and aims to strengthen knowledge about Roma people; 
promote inclusive citizenship and non-discrimination; reinforce intervention in intercultural 
mediation;  promote  equality  between  women  and  men  in  Roma  integration  measures; 
guarantee  effective  conditions  of  access  to  education,  educational  success  and  lifelong 
learning for Roma people; guarantee the conditions for full and equal participation of Roma 
people in the labour market and professional activity; ensure the conditions for effective 
equal access to adequate housing for Romani and Traveller people and guarantee effective 
conditions for health. 

The ‘Plan for the Prevention of Manifestations of Discrimination in the Security Force’ is an 
internal  plan  that  was  announced  by  the  Minister  of  Internal  Administration  on 
19 March 2021 and is available online.163 The plan was prepared by the General Inspection 

157  Porto also adopted its own plan in 2021 (https://www.tsf.pt/portugal/sociedade/plano-municipal-lgbti-

aprovado-no-porto-be-critica-resistencia-do-executivo-de-rui-moreira-13865094.html). 

158  This programme was extended until 30 June 2023, according the Resolution of the Council of Ministers No. 

141/2022, 28 December 2022. 

159  Available at: https://dre.pt/application/conteudo/142870337.  
160  See: https://dre.pt/dre/detalhe/resolucao-conselho-ministros/101-2021-168475294. 
161  See: https://data.dre.pt/eli/resolconsmin/154/2018/11/29/p/dre/pt/html. 
162  Resolution 36/2023, 3 May, Diário da República, Série I, of 3 May 2023, extended its application until the 

end of 2023. 

163  See: https://www.portugal.gov.pt/download-

ficheiros/ficheiro.aspx?v=%3d%3dBQAAAB%2bLCAAAAAAABAAzNDQxsQQAXM%2b51QUAAAA%3d. 

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of  Internal  Affairs  (IGAI),  with  participation  from  the  National  Republican  Guard  (GNR), 
the Public Security Police (PSP) and the Foreigners and Borders Office (SEF). According to 
the plan, a human rights officer will now be appointed in each of these police forces. The 
plan  defines  five  strategic  intervention  areas:  recruitment  process;  training;  social 
networks;  image  of  security  forces;  prevention  and  monitoring.  In  terms  of  recruitment 
processes,  the  plan  reinforces  communication  strategies  so  that  a  greater  diversity  of 
candidates  is  recruited,  in  terms  of  both  gender  and  ethnic-racial  origin.  The  plan  also 
defines ‘good practices in the use of social networks by members of the security forces, 
related to the prevention of manifestations of discrimination’. Thus, police officers’ social 
network  profiles  will  be  monitored  to  avoid  ‘hostile  statements  that  incite  hatred  or 
discrimination  against  people  or  groups’,  and  ‘offensive  comments,  in  particular  against 
people, groups, religions, political beliefs, including offensive comments based on gender, 
sexual orientation, ethnic-racial origin, nationality or country of origin’. 

Concerning  disability,  in  April  2021,  the  Portuguese  Government  approved  the  National 
Strategy for the Inclusion of Persons with Disabilities (2021-2025).164 The Strategy reflects 
the  commitments  of  the  United  Nations  Convention  on  the  Rights  of  Persons  with 
Disabilities and will allow for the launch of a set of measures, such as: the reformulation 
of  the  current  regulatory  framework  whenever  necessary;  the  reformulation  of  the 
disability assessment and certification system; a comprehensive diagnosis of persons with 
disabilities  through  the  development  of  systems  for  data  collection  and  for  monitoring 
indicators  to  support  decision-making;  interventions  in  public  spaces  to  facilitate  access 
for persons with disabilities; the adjustment of the training, employment and qualification 
systems  for  persons  with  disabilities;  the  development  of  innovative  social  services  and 
community-based approaches; the participation of persons with disabilities in sport, culture 
and leisure activities; and the extension of the Support Model for Independent Living, which 
provides personal assistance to persons with disabilities. 

164  Resolution of the Council of Ministers 119/2021, available at: 
https://www.inr.pt/documents/11309/284924/ENIPD.pdf. 

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10  CURRENT BEST PRACTICES 

In  the  field  of  education,  pupils  with  disabilities  follow  special  programmes  in  basic  and 
secondary-level schools that support mainstream education. In higher education, faculties 
have an admissions quota of 2 % of their total intake reserved for students with disabilities. 
In addition, scholarships for Roma students were established and reinforced in 2021. Also 
for 2022, 120 scholarships under the Roma Educa programme were opened.165 

Persons  with  disabilities  are  exempt  from  any  fees  in  the  national  public  health  service 
(Serviço Nacional de Saúde – SNS), as long as they can provide proof of their disability. 
They are entitled to buy certain special means of transport (cars, wheelchairs) at reduced 
rates  of  tax.  The  Institute  for  Employment  and  Vocational  Training  may  sponsor  the 
adaptation of cars for persons with disabilities if they can prove that they need a car to 
carry out their work. 

Generic NGOPDs (NGOs that represent  persons with disabilities) are  entitled to financial 
support through the INR.166 The INR is a public institution, and funding therefore comes 
from the state budget according to the criteria for equality and equity set out in cooperation 
protocols adopted by the NGOPDs and the INR. After approval, the criteria are published 
on the INR website, and funding is subsequently awarded. 

Regarding employment, the recent ‘Sustainable Employment Commitment’, which is part 
of the Portugal 2030 Strategy, framed within the European Union’s Recovery and Resilience 
Mechanism,  also  has  a  potential  of  increasing  the  number  of  open-ended  employment 
contracts concluded with unemployed people most of whom are excluded from the market 
given, for instance their age, disability or refugee status. 

Regarding the potential  for artificial intelligence and algorithms  to lead to discrimination 
and alongside Law 27/2021 of 17 May 2021, which approves the Portuguese Charter of 
Human Rights in the Digital Era, a document produced by the Portuguese Administrative 
Modernisation Agency (AMA) was put out for consultation in December 2020, with a view 
to establishing a Guide for Ethical, Transparent and Responsible Artificial Intelligence.167 
This  document  resulted  in  the  Resolution  of  the  Council  of  Ministers  131/2021  of 
10 September,  which  approves  the  Digital  Transformation  Strategy  for  the  Public 
Administration 2021-2026 and consequent Transversal Action Plan, in alignment with the 
execution  calendar  for  the  Recovery  and  Resilience  Plan  (PRR),  which,  in  the  second 
strategic line on data valorisation, requires that data have the necessary quality in order 
not to create, exclude or discriminate against fringes of the population. 

165  See: https://www.acm.gov.pt/-/programa-de-bolsas-roma-educa-candidaturas-abertas-ate-14-de-

fevereiro. 

166  See Decree-Law 31/2012, approving the structure of the National Institute for Rehabilitation (Lei orgânica 

do Instituto Nacional para a Reabilitação), 9 February 2012, repealing Decree-Law 217/2007 of 
29 May 2007, available at: https://dre.pt/pesquisa/-/search/543729/details/maximized. 

167  See: https://tic.gov.pt/pt/web/tic/guia. 

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11  SENSITIVE OR CONTROVERSIAL ISSUES 

11.1 Potential breaches of the directives at the national level 

Government  and  Parliament  have  been  making  significant  efforts  to  improve  the 
compliance of Portuguese legislation with the directives.  

Portuguese  legislation  complies  with  the  directives  and  sometimes  goes  beyond  their 
scope.  

11.2 Other issues of concern  

Other key issues of concern with regard to the implementation and practical application of 
the anti-discrimination directives at national level are:  

- 

- 

- 

- 

- 

- 

- 

- 

Age is an area in which it seems that the Portuguese legislator and the courts have 
not paid much attention to the novel CJEU case law that has brought the issue of age 
discrimination  to  light.  In  legislative  terms,  any  explicit  reference  to  age  is  absent 
from most of the anti-discrimination clauses in Portuguese law. The justification test 
used  in  courts  in  age  discrimination  cases  equates  to  a  mere  reasonableness  test, 
and does not therefore fulfil the need to control potentially discriminatory measures 
according to a structured analysis of legitimacy and proportionality.  
The difference between the written law and its practical effect. In Portugal, it is rather 
common  to  approve  legislation  that  would  be  completely  appropriate  to  achieve 
certain goals, but which, due to the country’s financial and economic weakness, for 
instance, does not function properly. This applies in particular to the implementation 
of social rights. Nevertheless, in the past few years, there has been a considerable 
effort  to  render  non-discrimination  rights  effective  in  both  the  public  and  private 
spheres. 
There are still barriers to access to justice that need to be overcome. The length of 
the  procedures  and  the  costs  involved  are  two  disincentives  to  accessing  justice. 
Attempts should be made to turn the situation around – for instance, by involving 
NGOs and other associations in discrimination procedures and by resorting to more 
expeditious and equitable mechanisms such as mediation. 
The  independence  of  the  specialist  bodies  that  deal  with  racial  and  ethnic 
discrimination  has  not  been  completely  ensured.  Nevertheless,  the  Law  93/2017 
makes significant efforts to ensure that the specialist bodies conform to the powers 
envisaged in Article 13 of the Directive and are therefore more active and visible to 
the public. The proposed Directives on Equality Bodies will be most relevant to the 
stabilisation and awareness-raising of the role of such bodies. 
Although instances of administrative and judicial vindication of discrimination claims 
are  still  scarce  in  Portugal,  the  tide  seems  to  be  turning,  mostly  with  regard  to 
administrative  fines.  This  points  to  an  increasing  awareness  of  equality  and  non-
discrimination rights, and to greater knowledge and functioning of the legal system 
in this area. 
A  particular  sign  of  change  comes  from  judicial  cases  on  discrimination  on  ethnic 
origin  grounds.  They  show  that  ethnic  tension  is  starting  to  be  discussed  more  in 
legal fora and is not continuing to be as hidden as before, and also that courts are 
well-equipped to solve those cases. 
Given the existence of several equality bodies in Portugal, it is harder to ascertain if 
multiple discrimination has taken place in a concrete situation (that involves several 
equality  bodies  mandates,  for  instance  ethnic  origin,  gender  and  disability).  This 
might prevent the adequate consideration and sanctioning of these conducts and also 
prevent to ensure effective access to justice. 
So  far,  no  concrete  issues  of  concern  have  been  identified  regarding  the  use  of 
artificial  intelligence  in  relation  to  the  implementation  of  national  legislation 
transposing the directives. However, the fear that this may happen (and the desire 

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Country report - Non-discrimination – Portugal – 2023 

that  it  should  be  avoided)  is  voiced  in  the  Resolution  of  the  Council  of 
Ministers 131/2021  of  10  September,  which  approves  the  Digital  Transformation 
Strategy for the Public Administration 2021-2026. ‘As a consequence, a Guide for an 
Ethical,  Transparent  and  Responsible  Artificial  Intelligence  in  Public  Administration 
was adopted in 2022’.168 

168  Available at: https://qld-bo-etic.northeurope.cloudapp.azure.com/api/assets/etic/d44b2322-3dd1-4b21-

a32e-cbc0b9e67955/. 

103 

 
Country report - Non-discrimination – Portugal – 2023 

12  LATEST DEVELOPMENTS IN 2022 

12.1 Legislative amendments 

No relevant legislative developments occurred in 2022. 

12.2 Case law 

There was some relevant case law in 2022 related to the grounds covered by this report, 
namely race or ethnic origin. 

Relevant  discrimination  grounds:  racial  and  ethnic  origin,  sexual  orientation,  belief, 
religion 
Name of the court: Criminal Court of Lisbon 
Date of decision: 22 June 2022 
Name of the parties: 
Reference number: proc. N.º 953/15.4PELSB 
Link: No link available. Access to the Decision was achieved through a request directed by 
the Rapporteurs to the Court. 
Brief  summary:  The  case  was  triggered  in  2016  when  an  operation  by  the  National 
Counterterrorism  Unit  (UNCT)  of  the  Judiciary  Police  (PJ)  detained  several  persons 
suspected of being part of the Portuguese Hammerskins (a neo-Nazi skinhead group) and 
having  been  the  perpetrators  of  several  crimes,  executed  between  2013  and  2017, 
motivated by racial, ideological and sexual hatred. 

In June 2020, 27 persons linked to the Portuguese Hammerskins movement were formally 
charged  with  a  crime  of  racial,  sexual  and  religious  discrimination  (Article  240  of  the 
Criminal Code) and other offences (bodily harm, incitement to violence, attempted murder, 
damage with violence, drug trafficking and arm trafficking).  

The 27 defendants were accused, among other things, of having violently attacked several 
people  in  the  Lisbon  area,  including  homosexuals,  immigrants  and  communist 
activists/militants.  The  incidents  took  place  in  various  formats.  In  most  cases,  the 
defendants  used  social  media  –  Facebook  –  as  a  tool  to  spread  their  hate  speech:  to 
organise anti-refugee mobilisations, to share videos with racist messages, to disseminate 
offensive  photos,  etc.  Other  incidents  took  place  in  a  night-time  environment  such  as 
concerts, bars, gay parties, etc.  

The  trial  started  in  February  2022  and  the  sentence,  now  final,  was  passed  on  27  June 
2022  by  the  Criminal  Court  of  Lisbon.  Twenty-one  of  the  defendants  were  convicted  of 
racial,  sexual  and  religious  discrimination  and  sentenced  to  imprisonment.  Custodial 
sentences ranged from six months to nine years. Six of them were sentenced to effective 
imprisonment; 15 were given a suspended prison sentence; and the lightest sentence was 
applied to a prison guard, who was sentenced to six months in prison, with a suspended 
sentence for one year in its execution, for possession of a prohibited weapon. The Court 
also fully acquitted 5 of the 27 defendants.  

Relevant discrimination grounds: Ancestry 
Name of the court: Coimbra Court of Appeal, proc. 574/21.2T8GRD.C1 
Date of decision: 13 December 2022  
Name of the parties:  
Reference number: proc. 574/21.2T8GRD.C1 
Link: http://www.dgsi.pt/jtrc.nsf/c3fb530030ea1c61802568d9005cd5bb/8df24973dad56
8788025893500501908?OpenDocument 
Brief summary: In the present case the plaintiff (AA) invoked that he had received less 
salary  progression  in  relation  to  his  co-workers  given  his  humble  origins.  The  Court 
considered  that  that  grounds  for  discrimination  was  not  proved  but,  nonetheless, 

104 

 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

considered that there was discrimination given the fact that the plaintiff had progressed 
less than a colleague in a comparable situation in terms of ancestry (BB). The Court ordered 
the payment of retributions past, present and future according to the same criteria applied 
to BB. 

Relevant discrimination grounds: Disability 
Name of the court: Court of Appeal of Porto 
Date of decision: 13 July 2022 
Name of the parties:  
Reference number: proc. No. 3444/20.8T8MAI.P1 
Link: http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/f55c5a39abe92
770802588a300507225?OpenDocument&Highlight=0,ass%C3%A9dio 
Brief summary: In the case, the employee was recruited as a physiotherapist in 2000. In 
2017, she was diagnosed with disease in her hands – contact dermatitis – that required 
some  measures  to  accommodate  the  worker’s  situation.  The  employer  refused  to  adapt 
her  functions  and  denied  her  access  to  occupational  medicine  consultations.  In  2018,  a 
flexible schedule was also requested which was refused by the employer. Furthermore, the 
employer did not raise the worker’s salary, as done with other workers. The health status 
of  the  employee  worsened  and  in  2019  the  disease  was  recognised  as  an  occupational 
disease. In December 2019, when the employee returned to work, after being on leave, 
she restarted performing her usual tasks, aggravating her clinical condition. She informed 
the employer of the worsening of the professional disease and requested accommodations 
in  her  job.  For  a  few  days  she  attended  the  service  but  refused  to  work  until  a  written 
service order with her duties was provided. In 2020, the employee was dismissed on the 
grounds of wilful disobedience. 

The claimant brought a claim to the court on the basis that the dismissal was unlawful and 
that she had been subjected to discriminatory harassment. The first-instance court deemed 
that the behaviour of the employer constituted moral harassment, but not discriminatory 
harassment (although the worker was in a situation of temporary incapacity for work and 
in 2019 the Professional Risk Protection Department of the Social Security  informed the 
worker  that  the  occupational  disease  had  been  recognised  with  a  permanent  partial 
incapacity of 15 %). However, the Court did not consider this and it contained no detailed 
explanation why the Court believed there was no discrimination harassment. However, the 
second-instance court decision, now final, rejected her claim, arguing that the intention of 
the employer was not to punish the worker and that none of the employer’s attitudes was 
a humiliating and vexatious situation for the claimant. 

According to the authors, if the case were to be analysed according to the definition of a 
disability  for  the  purposes  of  claiming  reasonable  accommodation  for  persons  with 
disabilities in the area of employment, the solution could have been diverse, if we consider 
the  definition  of  disability  of  Law  38/2004  of  18  August,  which  is  in  line  with  CJEU’s 
interpretation. 

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Country report - Non-discrimination – Portugal – 2023 

ANNEX 1: TABLE OF INTERNATIONAL INSTRUMENTS 

Country:   Portugal 
Date:  

1 January 2023 

Instrument  Date of 

signature  

Date of 
ratification  

Deroga-
tions/ 
reserve-
tions 
relevant to 
equality 
and non-
discrimina-
tion 
Articles 
and 7 

5 

Right of 
individual 
petition 
accepted? 

Yes 

Can this 
instrument 
be directly 
relied upon 
in 
domestic 
courts by 
individuals
? 
Yes 

22.09.1976 

09.11.1978 

European 
Convention 
on Human 
Rights 
(ECHR) 
Protocol 12, 
ECHR 

Revised 
European 
Social 
Charter 

Internationa
l Covenant 
on Civil and 
Political 
Rights 
Framework 
Convention 
for the 
Protection of 
National 
Minorities 
Internationa
l Covenant 
on 
Economic, 
Social and 
Cultural 
Rights 
Convention 
on the 
Elimination 
of All Forms 
of Racial 
Discrimina-
tion 
ILO 
Convention 
No. 111 on 
Discrimina-
tion 

04.11.2000 

25.11.2016  No, 

Yes 

Yes 

03.05.1996 

30.05.2002  No  

derogations/
reservations 

07.10.1976 

31.07.1978  No 

Ratified 
collective 
complaints 
protocol? 
Yes 
Yes 

Yes 

Yes 

01.02.1995 

07.05.2002  No 

N/A 

No 

07.10.1976 

31.07.1978  No 

Yes 

Yes  

29.04.1982 

24.08.1982  No  

No 

Yes 

15.06.1958 

19.11.1959  No 

No 

Yes 

106 

 
 
 
 
 
 
 
 
Country report - Non-discrimination – Portugal – 2023 

Instrument  Date of 

signature  

Date of 
ratification  

Right of 
individual 
petition 
accepted? 

Deroga-
tions/ 
reserve-
tions 
relevant to 
equality 
and non-
discrimina-
tion 

26.11.1990 

21.09.1990  No 

Yes  

Can this 
instrument 
be directly 
relied upon 
in 
domestic 
courts by 
individuals
? 
Yes 

Convention 
on the 
Rights of the 
Child 
Convention 
on the 
Rights of 
Persons with 
Disabilities  

30.03.2007 

23.09.2009  No  

No 

Yes 

107 

 
 
 
 
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