Can an employee with HIV be fired? Case involving Coca-Cola in Bahia reignites discussion

A decision by the Bahia Labor Court involving a former Coca-Cola employee has reignited the discussion about the rights of people living with HIV in the job market. The man, who also had a rare type of cancer, was fired in 2022 and will receive R$28,240 in moral damages, after the Court ruled that the company did not prove a legitimate reason for the dismissal. The decision can still be challenged.

But, after all, can a person living with HIV be fired?

The answer is that health conditions alone do not prevent the termination of an employment contract. However, Brazilian legislation prohibits an employee from being dismissed due to discrimination, and the understanding of the Superior Labor Court (TST) establishes specific protection for people living with HIV.

What does the Court say about the dismissal of people with HIV?

Precedent 443 of the Superior Labor Court establishes that the dismissal of an employee who lives with HIV or has another serious illness that could cause stigma or prejudice is presumed to be discriminatory.

In practice, this means that, in situations like these, the Court assumes that the dismissal may have been motivated by the worker's health condition. It is up to the company to present elements that demonstrate that the dismissal occurred for a legitimate reason and unrelated to the illness.

Protection can also reach people with other serious illnesses, as long as they are capable of causing stigma or prejudice.

What does Brazilian legislation say?

Law No. 9,029, of 1995, prohibits discriminatory practices that prevent a person from accessing or remaining in the job market.

The legislation also provides consequences for companies that break contracts for discriminatory reasons. In these cases, the worker may be entitled to compensation for moral damages and can choose between two possibilities:

Reinstatement of employment: return to work and receive wages and other remuneration for the period in which you were away.

Double payment: receive double the remuneration for the period of absence, with monetary correction and legal interest.

The possibilities are provided for in article 4 of Law nº 9,029/1995.

What happened in the case involving Coca-Cola in Bahia?

The worker worked as a sales promoter at Norsa Refrigerantes S.A., a company that manufactures and bottlers Coca-Cola products. He was fired in November 2022 when the company claimed it was undergoing organizational restructuring.

During the process, the company confirmed that it had known since 2019 that the employee was living with HIV. He also argued that the dismissal was not an isolated case, as 14 other employees were dismissed in the same period.

However, according to the TRT-BA, the company did not present sufficient evidence of the criteria used for the dismissals.

Unanimously, the judges of the First Panel denied the appeal presented by the company and maintained the conviction.

In addition to the R$28,240 for moral damages, the worker will receive compensation in lieu of reinstatement, corresponding to the remuneration for the period between dismissal, in November 2022, and the beginning of 2023, when he got another job.