Prejudices and systematic practices of discrimination against people with disabilities in the work environment have motivated international bodies such as the International Labour Organization (ILO) to have this problem covered in their conventions and recommendations.

This is the case of ILO Convention No. 111, promulgated by Decree 62.150/68, concerning discrimination in employment and occupation. This standard encourages the adoption of affirmative action policies, with the cooperation of employers' and workers' organizations and other appropriate bodies as the main instrument. The aim is to promote equal opportunities and equal treatment in employment and occupation by methods appropriate to national circumstances and customs.

In Brazil, the legislator established affirmative action in article 93 of Law No. 8,213/91, providing that companies with one hundred or more employees are obliged to fill from 2% to 5% of their positions with rehabilitated workers or qualified persons with disabilities. It is further established that the unjustified dismissal of these employees may only occur after the hiring of a substitute in a similar condition.

This state protection has limited the employer's power to dismiss without cause employees who are within the legal quota. In order for a discriminatory act not to be presumed or found, employers must be doubly cautious when they need to dismiss an employee with a disability.

According to the prevailing case law of the Superior Labor Court (TST), "the dismissal of a rehabilitated worker or of a disabled worker, without cause, in employment for an indefinite term, may only occur after the hiring of a substitute in a similar condition, with dismissal without just cause being void when the legal requirement is not observed." In other words, according to the majority opinion of the Superior Court, termination of employees hired under article 93 of Law No. 8,213/91, outside the conditions set forth therein, may result in their reinstatement into the post until the requirement imposed by law is met. This reinstatement is considered a provisional guarantee of employment.

The nullity of the termination with reinstatement of the employee to the functions previously performed is not considered job stability, but a guarantee of employment until the employer fulfills the legal requirement to replace the disabled person under the same conditions and with the same level of adaptations.

Doubts arise, however, about the meaning of the expression "substitute in similar condition." Can the legal obligation of substitution be satisfied only if the replacement employee has a disability of the same type and grade as the employee being replaced?

According to this interpretation, the dismissal of an employee using a wheelchair, for example, could be considered discriminatory if the replacement was a worker with a slight disability, to the detriment of maintaining the employment of the one who evidently has less chance of obtaining and keeping a job, since it does not require greater adaptations in the working environment.

The 6th Panel of the TST positioned itself in interpreting the provision in Appeal for Review RR-779-16.2012.5.03.0069. In the case in question, the trial labor court, as well as the Regional Labor Appeals Court (TRT), adopted the understanding that the replacement should be for a person with the same type of disability, ordering reinstatement of the former employee who had been dismissed. However, as the 6th Panel decided, the legal standard does not make any distinction, but only requires the hiring of employees under the same conditions - "person with disability", and not a person who has the same disability. The employer was absolved of the reinstatement and judgment by the trial and regional appeals court.

Another issue that generates discussion on the issue of quota compliance: may a company that exceeds the required percentage dismiss a disabled employee or must it follow the rule imposed by article 93, paragraph 1, of Law No. 8,213/91, according to which dismissal of a rehabilitated worker or of a qualified disabled person at the end of a fixed-term employment contract for a determined period of more than 90 days and the dismissal without cause, in the contract for an indefinite period, only occur after the hiring of a substitute with a similar condition?

The law is not clear on whether such a prohibition should be applied in all cases or only when the company does not meet the legal minimum quota, a fact that has led to many judicial disputes. For years the labor courts have taken the position that the prohibition should be applied in all cases, even when the employer already had the minimum number of disabled persons required by law. The argument was that the intention of the law is the social and professional integration of these people, regardless of whether or not quotas are met.

However, in mid-2017, the TST's Individual Disputes Section I issued a decision in case No. 0010740-12.2005.5.17.0012 recognizing that there is no legal impediment to dismissal of a disabled employee, even without the hiring of a substitute, when the company maintains in its workforce a percentage of employees in this condition above that stipulated in article 93 of Law No. 8,213/91 (minimum quota).

After this decision, the courts have increasingly found that the prohibition of paragraph 1 of article 93 should only be applied when the employer does not comply with the minimum legal quota, although there is still a lot of controversy on the subject.

Faced with legal controversies, the federal government, through the Bureau of Labor Affairs, issued a question and answer booklet to inform and guide employers, employees, and the public in general about affirmative action and to ensure social inclusion and compliance with the rules prohibiting discrimination in labor relations.

If discriminatory practice is proven, the Bureau of Labor Affairs may assess the company with an infraction notice, under penalty of administrative liability, according to article 628 of the Consolidated Labor Laws (CLT).

Also as an affirmative action, the federal government, through Executive Order (MP) 905/2019 (article 19), instituted the Program for Physical and Professional Qualification and Rehabilitation, Prevention and Reduction of Accidents in the Workplace, with the purpose of financing the professional qualification and rehabilitation service provided by the INSS.

There are, therefore, actions by the Brazilian government and the intense internalization of international standards with the purpose of eliminating discriminatory practices against people with disabilities in the work environment, either by adhering to the rules of the conventions and their recommendations, or by promulgating laws and affirmative actions. In this context, employers should adjust their practices and policies to the provisions of law, case law, and international recommendations, implementing affirmative action to eradicate discrimination in the workplace and prevent lawsuits.