Danielle Di Marco
Lawyer at Marcos Martins Advogados
A person with a disability is one who has a long-term physical, mental, intellectual or sensory impairment, which, in interaction with one or more barriers, may obstruct their full and effective participation in society on equal terms with others. (BRASIL, 2015)¹
The Constitution of the Republic in its article 7, inc. XXXI, prohibits any kind of discrimination with regard to salary and criteria for hiring disabled workers.
Considering this, article 93 of Law 8.213/91, which aims to ensure and promote the exercise of fundamental rights and freedoms by people with disabilities on equal terms, and is aimed at social inclusion and citizenship, stipulates that companies with 100 (one hundred) or more employees must fill two to five percent of their positions with rehabilitated Social Security beneficiaries or people with disabilities, under penalty of high fines and administrative sanctions from the Labor Prosecutor’s Office (MPT), which monitors relations between employees and employers.
However, although it is the employer’s burden to comply with the requirement set out in article 93 of Law 8.213/91, it cannot be held responsible for failure when it proves that it has made every effort to fill the minimum quota, and the TST’s Individual Disputes Section 1 has ruled in this regard.²
Thus, although the obligation to fulfill the quota remains, the fact is that the company should not be held liable for discriminatory conduct when the failure to hire was due to a fact beyond its control.³
In the case cited, the company proved that it had advertised various job vacancies for people with special needs, and demonstrated that it had advertised vacancies for people with disabilities on the internet, but it was unsuccessful, certainly due to the lack of other constitutional guarantees, such as accessibility, locomotion, among others.
Thus, for the inclusion of disabled workers to happen, the guarantee of accessibility and equality must fulfill its constitutional role, otherwise the difficulty will stem from the impossibility of locomotion.
The law firm Marcos Martins Advogados is always aware of changes in legislation and case law in labor matters, maintaining its commitment to excellence in providing legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
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¹BRASIL. Law No. 13146, of July 6, 2015. Establishes the Brazilian Law for the Inclusion of People with Disabilities (Statute of People with Disabilities). Brasília, DF, July 7, 2015.
²TST. E-ED-RR – 658200-89.2009.5.09.0670. Date of Judgment: 12/05/2016, Reporting Justice: João Batista Brito Pereira, Subsection I Specialized in Individual Disputes, Date of Publication: DEJT 20/05/2016.
STST. AIRR – 1642-35.2013.5.18.0128. Date of Judgment: 03/02/2016, Reporting Justice: Mauricio Godinho Delgado, 3rd Panel, Date of Publication: DEJT 12/02/2016.
