Fired for living with HIV in Brazil? The law presumes discrimination

By Ramon Martins Andrade, attorney (OAB/RJ 188.374)

Among the lesser-known rights of people living with HIV in Brazil, one of the strongest sits in labor law: the dismissal of an HIV-positive employee is presumed discriminatory. It is the employer who must prove otherwise.

The presumption of TST Precedent 443

Brazil’s Superior Labor Court (TST) consolidated the rule in Precedent (Súmula) 443: the dismissal of an employee living with HIV, or with another serious stigmatizing disease, is presumed discriminatory; the act is invalid and the employee is entitled to reinstatement.

The logic is a reversal of the burden of proof. Ordinarily, whoever alleges discrimination must prove it, nearly impossible in a dismissal given without reasons. Here the court acknowledged the weight of stigma and flipped the game: once the serostatus and the employer’s knowledge of it are shown, the dismissal is presumed discriminatory, and it is the company that must demonstrate a legitimate reason, technical, disciplinary or economic, for the termination.

What the employee can claim

Once discrimination is recognized, the typical outcome is reinstatement with back pay or, where returning is unworkable, its conversion into compensation, plus moral damages. The presumption, however, is relative: if the company proves a legitimate reason unrelated to serostatus, the dismissal stands. This is not absolute job tenure.

Discrimination is a crime

Since 2014, discriminatory conduct against people living with HIV is a crime in Brazil, punishable by 1 to 4 years of imprisonment plus a fine (Law 12.984/2014). The list reaches the workplace directly: refusing employment, dismissing because of serostatus, segregating at work, and disclosing someone’s condition with intent to offend their dignity. The same law covers schools and the refusal or delay of health care.

Confidentiality is the rule

No one is required to disclose their HIV status to an employer, and pre-hiring or dismissal exams are not a lawful vehicle for HIV screening. If your status circulated through the company without your consent, that leak is in itself compensable, and may constitute the disclosure crime under the law.

What to keep

Labor cases are won on evidence: note dates, keep messages and e-mails, identify who knew of your status and when, and gather the dismissal papers. The deadline to file a labor claim in Brazil is two years from the end of the employment contract.

The firm is available for a responsible review of your situation, in English.

About the author

Ramon Martins Andrade (Brazilian Bar, OAB/RJ 188.374) holds a law degree from UFRJ (2011), with master’s degrees from Université Sorbonne Nouvelle and from the Brazilian Naval War College (EGN). He is currently a researcher in Human Rights and Health at ENSP/Fiocruz.

This content is for information and education only. It does not constitute legal advice, advertising of results or any guarantee of outcome, under Rule 205/2021 of the Brazilian Bar Association (OAB).