Discriminatory dismissal in Brazil: when firing is illegal and what the worker can claim

A dismissal is discriminatory when the real reason is a personal characteristic of the worker — sex, origin, race, color, marital status, family situation, disability, age, pregnancy or illness, among others — rather than performance or the employer's needs. Law 9,029/1995 prohibits this practice and gives the worker the right to choose between reinstatement or double pay for the period away, plus compensation for moral damages.

Quick summary

• Legal basis: the Constitution (arts. 3, IV, and 7, XXX and XXXI) and Law 9,029/1995.
• Worker's choice: reinstatement with pay for the whole period or double pay for the period away (art. 4).
• Serious, stigmatizing illness (such as HIV and cancer): the dismissal is presumed discriminatory — the employer must prove another reason (TST Precedent 443 — the TST is the Superior Labor Court).
• Moral damages are usually recognized as well.
• Deadline: up to 2 years after the end of the contract.

Examples that are usually recognized

• Dismissal right after the worker discloses a diagnosis of serious illness.
• Dismissal of someone close to retirement or simply for being older.
• Dismissal after returning from maternity leave with comments about "not coping" — see Maternity and paternity leave.
• Dismissal after coming out about sexual orientation or gender identity at work.
• Dismissal in retaliation for testifying against the employer or filing a claim.
• Requiring a pregnancy test or sterilization for hiring or continued employment — this is a crime (Law 9,029/95, art. 2).

How to prove it

The burden is on the worker, except under Precedent 443, where discrimination is presumed. The most common indications are:

1. Timeline: the dismissal came right after the event (diagnosis, pregnancy, complaint, lawsuit).
2. Messages and remarks from managers about the personal characteristic.
3. A record of good performance — reviews, awards, no warnings.
4. Comparison with colleagues in the same situation who were not dismissed.
5. Witnesses.

See how to organize it in Evidence in a labor case.

What to claim in court

• Reinstatement, with salary and benefits for the period away, or
• Double pay for the whole period away, adjusted and with interest;
• Compensation for moral damages;
• A request for urgent relief for immediate reinstatement when there is a risk (for example, losing health insurance during treatment).

Frequently asked questions

Can an employer dismiss someone with a serious illness without cause?

It can, if it proves a legitimate reason unrelated to the illness. Without that proof, the dismissal is presumed discriminatory under TST Precedent 443.

Is dismissal because of age discriminatory?

Yes. Age is among the prohibited grounds under Law 9,029/95.

Can someone who sued the employer be dismissed for it?

A dismissal in retaliation for a lawsuit or complaint may be considered discriminatory and abusive.

Read more in this series

• Dismissal during medical leave: is it allowed?
• Job security: who is entitled and for how long
• Sexual harassment at work: what it is and how to report it
• Evidence in a labor case: how to gather and organize it
• Index: complete guide to labor rights