Brazil’s Federal Constitution grants legal protection for workers with disabilities and prohibits discrimination of wage and admission criteria on employment opportunities[1].
One of the rights granted by Brazil’s legal system for disabled workers is the quota scheme, which, according to a report from the International Labour Organization (ILO), consists in “one of the most frequently used policy measures to promote work opportunities for persons with disabilities”[2].
The same report tells that the quota scheme was conceived in the early 1920s as an affirmative action to provide employment for people who became disabled in the context of the First World War. After the Second World War, quotas were gradually extended from its initial range of protection for people with physical disabilities to include intellectual and psychosocial disabilities as well.
In Brazil’s legal scenario, the quota scheme was instituted by Federal Bill nº 8.213/1991, which regulates the Social Security System. Article 93 of that statute determines that employers with one hundred or more employees are obliged to grant 2% to 5% of quotas, according to the following criteria:
| Total of employees | Percentage of quotas |
| > 100 e <= 200 | 2% |
| > 200 e <= 500 | 3% |
| > 500 e <= 1.000 | 4% |
| > 1.000 | 5% |
In comparative terms, countries such as France and Germany instituted a greater percentage of quotas for employers with proportionally lesser employees, as can be seen in the following table[3]:
| Country | Quota % | Employer threshold |
| Brazil | 2-5% | Private sector employers with over one hundred employees |
| France | 6% | Public and private employers with more than twenty employees |
| Germany | 5% | All employers with twenty workers and more |
Back to Brazil’s legal scenario, to maintain the minimal percentage of quotas, the termination of an employment contract of a worker with disability must only occur after the admission of another. However, if the quotas implemented are already superior to the legally required percentage, would the termination of one’s contract still depend on the hiring of a new employee?
For example, if a given company has a total of two hundred employees, 2 percent, or four vacancies in total, must be reserved for people with disabilities. But if already six vacancies are fulfilled, would the employer have to hire a new employee with disability to substitute the one whose contract was terminated?
The current doctrinal perspective of Brazil’s Superior Labour Court (Tribunal Superior do Trabalho – TST) gives a negative answer to that question.
According to case law decisions from the TST, compliance with the affirmative action contained in the Article 93 Section 1 of Brazil’s Social Security System Statute is obtained by only preserving the minimal number of vacancies. If the number of employees with disabilities is already superior to the quota, the employer is not obliged to substitute an employment contract for another.
The criteria for compliance with the legal provision under analysis is purely quantitative. Also, the admittance of a new employee does not have to be for the same position of the one whose contract was terminated, neither their jobs must be qualitatively equivalent.
In sum, the current doctrinal perspective of Brazil’s Superior Labour Court on the quota legislation is aimed to conciliate social protection with business efficiency, as it grants quotas without undermining the private sector’s autonomy to decide how to structure its human resources. And considering that Brazil’s quota legislation is less rigid in comparison with the others, this could be seen as a business opportunity to explore different scenarios.
[1] Constituição da República Federativa do Brasil de 1988. Art. 7º São direitos dos trabalhadores urbanos e rurais, além de outros que visem à melhoria de sua condição social: […] XXI – proibição de qualquer discriminação no tocante a salário e critérios de admissão do trabalhador portador de deficiência.
[2] Promoting Employment Opportunities for People with Disabilities: Quota Schemes (Vol. 1) | International Labour Organization. International Labour Organization, 2019.
[3] Information extracted from: Promoting Employment Opportunities for People with Disabilities. Vol.2. International Labour Organization, 2019.
Luccas Miranda Machado de Melo Mendonça is associate at Pacheco Neto Sanden Teisseire Advogados.
