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The Superior Labor Court, in a paradigmatic decision, determined the validity of the employer's request for a pregnancy test at the time of contractual termination. The Superior Court's understanding is that the request for a pregnancy test did not constitute a discriminatory act and also did not represent a violation of privacy, as the conduct adopted offers greater legal security to the worker at the time of termination of the contract. The decision rejected an appeal from a former employee who sought compensation for moral damages because the company had demanded a pregnancy test when terminating the contract, which allegedly represented discriminatory conduct. The compensation request requested by the worker had already been rejected by the th Labor Court of Manaus and by the Labor Court of the th Region, on the grounds that the legislation does not expressly prohibit the examination upon dismissal, but only upon admission and during employment contract. The decision is controversial and controversial, but it represents a paradigm shift regarding the possibility of requesting a pregnancy test when carrying out the dismissal exams (ASO) to which all employees are subjected.
The topic is controversial, as Greece Phone Number article of Law , prohibits and considers the requirement of a pregnancy test for admission purposes or for the continuation of a legal employment relationship to be a discriminatory practice. Likewise, article -A, IV, of the Consolidation of Labor Laws , prohibits the requirement for a pregnancy test when entering or remaining in employment. Despite the current legislation establishing that it is not possible to require a pregnancy test for admission and continued employment, judicial decisions, in addition to being based on legislation, must analyze the factual and evidentiary set, as laws will be changed updated according to the need and evolution over time. It is important to highlight that since the end of , Bill , has been in progress in the National Congress, which aims to amend the legislation (CLT) to add the possibility of carrying out a pregnancy test upon dismissal, aiming to ensure compliance with the provisional stability of pregnant women provided for in the Federal Constitution. The legislation guarantees pregnant employees temporary employment stability from conception until five months after giving birth, with unjustified dismissals being prohibited during this period.
It is now common ground that even if the employer and the employee were not aware of the pregnancy at the time of dismissal, if it is proven that the worker was pregnant, she will have the right to reinstatement in her job. From the moment the understanding was consolidated that it is not necessary to be aware of the pregnancy status upon dismissal to be entitled to stability, the question arose as to why not add a pregnancy test to the regular dismissal exams, since, if there is discovery at the time of dismissal, this could be undone, continuing employment and fulfilling provisional stability, which represents greater legal security for both the employer and the employee. Currently, the Labor Court is constantly sued with actions seeking compensation and reinstatement to employment resulting from temporary job stability due to pregnancy. Now, does a pregnancy test at the time of dismissal's Occupational Health Certificate ( ASO) actually represent a discriminatory act or violate the worker's privacy ? Does this exam not bring more legal security to the worker? Despite the topic being controversial, the TST's decision was correct, since, if labor legislation aims to protect work and the employee, the pregnancy test, at the time of dismissal, represents protection for the employee and also for the employer.
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发表于 2024-3-12 13:44:45