The fundamental right to non-discriminatory treatment as a limit to the extinction of employment contract of the person with disease causing stigma or prejudice

Abstract

With development guided by the theoretical perspective of the fundamental right to receive non-discriminatory treatment, this article assumes the objective of evaluating the fairness of the Brazilian Superior Labor Court decision which recognized the presumption of practice of discrimination in the employer's initiative to promote the extinction of the employment contract of a worker affected by tuberculosis, considered, by the decision, as a serious disease causing stigma or prejudice. To reach the proposed objective, it adopts as a method the critical analysis of the interpretation arguments developed throughout the decision making process. It then confronts the set of interpretation arguments with the three criteria of evaluation proposed by Neil MacCormick's argumentation theory: consistency (contradiction absence), coherence (systemic accommodation) and universality (replication possibility). Following, from the theoretical perspective that guided the realization of the investigation, it concludes by the justice of decision by reason of the presence of those three evaluation elements.