Precedent 443 of the Brazilian Superior Labor Court (Tribunal Superior do Trabalho – TST) consolidated the understanding that the termination of an employee who lives with HIV, or with another serious illness that gives rise to stigma or prejudice, is presumed to be discriminatory.
In practice, this interpretation has significant implications for employment relationships, particularly at the time of termination.
How Does the Presumption of Discrimination Work?
When an employee claims that they were terminated in a discriminatory manner, but does not live with HIV and does not have another serious illness that gives rise to stigma or prejudice, the burden of proof lies with the employee. In other words, the employee must demonstrate that the termination was motivated by discrimination.
On the other hand, when the employee lives with HIV or has another serious illness that may give rise to stigma or prejudice, the logic is reversed. In this scenario, discrimination is presumed, and the burden of proof shifts to the employer, who must demonstrate that the termination occurred for legitimate reasons unrelated to the employee’s health condition.
Which Diseases Fall Within This Concept?
This is one of the main points of concern. There is no official list defining which diseases are considered serious and stigmatizing for purposes of applying Precedent No. 443, leaving room for different interpretations and for decisions that may vary depending on the understanding of each judge or adjudicative body.
As a result, it is not uncommon for lower-court decisions to be reviewed and reversed by higher courts, recognizing a particular illness as serious and stigmatizing even when that characterization had not been adopted initially.
By way of example, in addition to HIV, the TST has already recognized, in different cases, illnesses such as cancer, hepatitis, tuberculosis, schizophrenia, depression, epilepsy, leprosy, chronic alcoholism, multiple sclerosis, serious heart disease, and lupus, among others, as conditions capable of giving rise to stigma or prejudice[1].
Impacts and Risks for Employers
This interpretive flexibility creates legal uncertainty. The absence of objective criteria means that the assessment of the severity of the illness and its stigmatizing potential often depends on the subjective analysis of the judge.
In practice, this means that a termination initially considered legitimate may later be overturned, with a finding that the employee’s health condition falls within the scope of the presumption of discrimination.
It is important to emphasize that this does not prevent employers from exercising their right to unilaterally terminate an employment agreement. Termination without cause remains permitted under Brazilian labor law. The key issue is that this right must be exercised in a legitimate manner, without any discriminatory intent.
Given the possibility of future challenges – especially in cases involving illnesses that may potentially be classified as serious and stigmatizing – it becomes essential for employers to be prepared to demonstrate that the termination was based on objective reasons unrelated to the employee's health condition.
Measures That May Help Mitigate Risks
In this context, it is critical for employers to maintain consistent and well-organized documentation supporting the termination decision, such as performance reports, periodic evaluations, records of warnings and disciplinary measures, restructuring plans, and objective criteria adopted for layoffs or organizational changes, among others.
In addition, whenever possible, termination decisions should be preceded by a careful legal analysis, taking into account factors such as the employee’s history, the reasons for the termination, any prior knowledge of the employee’s health condition, the quality of the available documentary evidence, and the specific circumstances of the case.
The absence of such prior analysis may expose employers to significant risks, including employee reinstatement, awards of moral damages, and even reputational harm.
[1] Lawsuits Nos.: 0000666-11.2021.5.09.0124, decided on 12/05/2023; 0000056-46.2014.5.17.0001, decided on 06/29/2023; 1000576-40.2014.5.02.0313, decided on 05/04/2022; 0010723-31.2019.5.15.0144, decided on 09/13/2023; 0000199-15.2020.5.10.0811, decided on 10/16/2024; 0000513-51.2020.5.10.0005, decided on 12/13/2023; 0001623-44.2016.5.06.0003, decided on 10/16/2024; 1001572-33.2018.5.02.0431, decided on 12/13/2023; 0000976-60.2020.5.10.0015, decided on 06/25/2024; 0000401-04.2017.5.17.0002, decided on 02/28/2024; 1000626‑52.2017.5.02.0025, decided on 10/09/2024.
