Can a Worker With Cancer Be Dismissed in Brazil? When the Dismissal Is Considered Discriminatory

A cancer diagnosis often changes a worker’s routine profoundly. Appointments, surgeries, chemotherapy, radiotherapy and recovery periods may require time off and temporarily affect physical energy and professional performance.

At that moment, a dismissal can raise an immediate concern: can a company dismiss a worker with cancer during treatment?

The answer calls for care. A cancer diagnosis does not create automatic job security in every situation. However, the Superior Labor Court (TST) has precedents recognizing malignant neoplasm as a serious illness capable of giving rise to stigma or prejudice, which allows Precedent (Súmula) 443 of the TST to apply.

When the company knew of the illness and cannot show that the termination took place for a legitimate reason independent of the worker’s health, the dismissal may be considered discriminatory.

This article deals with cancer. For the general overview of other illnesses, see I Was Fired While Sick: When Can a Dismissal Be Discriminatory in Brazil?.

Can someone with cancer be dismissed?

A worker with cancer is not absolutely immune from dismissal.

The company can still dismiss for a legitimate reason unrelated to the illness, such as a restructuring that is actually proven, the closing of the business, a real economic need or another objective criterion applicable to employees in general.

The legal problem arises when the cancer influences the decision to dismiss.

This may happen, for example, when the worker is dismissed:

• after communicating the diagnosis;
• during chemotherapy or radiotherapy;
• after submitting successive medical certificates;
• shortly before or after a surgery;
• during the follow-up care needed after treatment;
• after a drop in productivity caused by the illness itself;
• while still depending on the company’s health plan;
• without the employer presenting an objective and provable justification.

In these situations, TST Precedent 443 can be used to recognize the presumption that the termination was discriminatory.

What does TST Precedent 443 say?

Precedent 443 establishes that the dismissal of an employee who lives with HIV or who has another serious illness capable of causing stigma or prejudice is presumed discriminatory.

When the dismissal is declared invalid, the worker may have the right to be reinstated.

In 2025, the TST’s Full Court reaffirmed this understanding when judging Theme 254 of the repetitive appeals. The thesis set provides that:

The dismissal of an employee who carries the HIV virus or another serious illness that gives rise to stigma or prejudice is presumed discriminatory. If the act is invalid, the employee has the right to be reinstated.

The judgment took place on August 22, 2025, and the ruling was published on September 5, 2025. The TST itself recorded that Theme 254 represents the reaffirmation of the case law already consolidated in Precedent 443.

Does the TST consider cancer a stigmatizing illness?

The TST has precedents recognizing that malignant neoplasm falls among the serious illnesses capable of giving rise to stigma or prejudice.

This understanding does not depend on the cancer being contagious or causing visible physical change.

In one of the precedents examined by the TST, involving a worker with skin cancer on the ear and in the external auditory canal, the Regional Court had ruled out discrimination because the illness supposedly had not caused visible anatomical changes.

The TST overturned that interpretation.

According to the ruling, the company knew of the seriousness of the illness and of the need for continuous treatment. The worker had undergone surgery a few months before the dismissal, remained under quarterly medical follow-up for a period of no less than five years and had not committed any disciplinary offense. The Court concluded that the seriousness of the cancer and the consequences of treatment were enough for Precedent 443 to apply.

Therefore, the stigma recognized by case law is not limited to the worker’s appearance. It may also be related to:

• the time off required by treatment;
• the company’s fear of further absences;
• the cost of keeping the health plan;
• the possible temporary drop in productivity;
• the continuity of medical care;
• the mistaken perception that the worker has become a burden to the company.

A real case: a worker with breast cancer was reinstated

A case judged by the TST’s Fifth Panel helps show how a discriminatory dismissal can occur in practice.

The worker was an administrative assistant and had been hired in July 2011. In September 2013, she was diagnosed with breast cancer and underwent surgery and chemotherapy.

She was dismissed without cause in July 2014. The reason given was that she supposedly had low productivity.

The dismissal took place while the worker still needed medical follow-up and further treatment. Besides losing her job, the termination resulted in the cancellation of the employer-provided health plan that she had been using to continue treatment.

The employer claimed that it had carried out a restructuring and needed to reduce its workforce. That justification, however, was confronted with the evidence in the case.

The Regional Court observed that the company’s representative stated at the hearing that the number of employees on the worker’s team was still the same and that no one else had been dismissed, and that a witness for the company itself said her position had not been filled. These circumstances weakened the claim that the termination had been due to a real need to reduce staff.

In reviewing the case, the TST’s Fifth Panel upheld:

• the worker’s reinstatement;
• the recognition of the discriminatory nature of the dismissal; and
• compensation for moral damages in the amount of R$ 20,000.

The rapporteur, Justice Alberto Balazeiro, noted that the TST’s SDI-1 (Subsection I Specialized in Individual Disputes) had already recognized that malignant neoplasm falls within the concept of a serious illness capable of arousing stigma or prejudice. The Fifth Panel’s decision was unanimous.

The case is Ag-AIRR-1001196-48.2016.5.02.0033, and the ruling is dated November 10, 2021, officially released by the TST in March 2022. In its vote, the Panel recalled that the SDI-1, in judgment E-ED-RR-68-29.2014.5.09.0245 (published on April 26, 2019, in a prostate cancer case), concluded that malignant neoplasm is a serious illness that causes stigma, which allows the presumption of Precedent 443 to apply.

Does a claim of low productivity rule out discrimination?

Not necessarily.

One of the most delicate questions in these cases is the use of “low productivity” as a justification for dismissal.

Cancer treatment can cause fatigue, nausea, pain, reduced concentration, immune fragility and the need for time off. If the loss of performance is linked to the illness or to the treatment itself, dismissing the employee precisely because of those consequences may represent an indirect form of discrimination.

The company must show that the justification given is:

• true;
• prior to the dismissal;
• based on objective criteria;
• applied equally to other employees;
• independent of the diagnosis and treatment.

Negative evaluations made only after the illness was discovered, demands related to medical absences or generic claims of low productivity may be insufficient.

In the case of the assistant with breast cancer, the TST considered the evidence as a whole, including knowledge of the illness, the continuation of treatment and the lack of proof of the alleged need to reduce the workforce.

Is every type of cancer covered by Precedent 443?

TST case law refers, in general terms, to malignant neoplasms.

There are precedents involving different types of cancer, among them:

• breast cancer;
• skin cancer;
• cancer of the auditory canal;
• kidney cancer;
• other malignant neoplasms.

In the case of skin cancer located on the ear and in the external auditory canal, the TST stated that the absence of visible physical change did not prevent recognition of the stigma. The company knew of the seriousness of the condition, the surgery performed and the need for continuous treatment.

However, the outcome of a case does not depend only on the affected organ or the name of the neoplasm. The courts also examine:

1. the seriousness of the illness;
2. the employer’s knowledge;
3. the timing of the dismissal;
4. the continuation of treatment;
5. the reasons given for the termination;
6. the evidence produced by the company and by the worker.

What is the ICD code for cancer?

In the ICD-10, malignant neoplasms are classified, as a rule, in the range C00 to C97, with subdivisions according to the affected organ and the characteristics of the disease.

Breast cancer, for example, belongs to group C50, also divided according to the location of the neoplasm in the breast.

However, the legal classification of a discriminatory dismissal is not made by the diagnosis code alone. The ICD code can help identify the illness in medical documents, but the labor case considers the worker’s clinical and professional reality.

Does the company need to know the worker has cancer?

As a rule, for the dismissal to be linked to the illness, it is necessary to show that the company knew, or had concrete means of knowing, about the situation.

This knowledge can be proven by:

• medical certificates delivered to the human resources department;
• leave for surgery;
• referral to the INSS (Brazil’s social security institute);
• a request to change working hours;
• communication of the diagnosis to a supervisor;
• emails or messages about the treatment;
• authorization for appointments and chemotherapy sessions;
• tests carried out by the occupational health service;
• witnesses who followed the communication;
• the company’s participation in managing the health plan.

It is not essential that the worker disclosed the diagnosis to all colleagues. Awareness on the part of management, the human resources department or the occupational health service may be enough, depending on the evidence in the case.

If the company did not know of the illness, the presumption of discrimination may be overcome. That is why the documents proving that the diagnosis was communicated are very important.

Does the worker need to be on leave from the INSS?

No.

The application of Precedent 443 does not necessarily depend on the granting of a social security benefit.

A worker may be undergoing cancer treatment, keep working and still suffer a discriminatory dismissal. The basis of the protection is not only incapacity for work, but the prohibition of excluding someone because of a serious illness associated with stigma or prejudice.

It may also happen that the employee is away for a few days at different times without receiving an INSS benefit. This does not prevent the analysis of discrimination.

On the other hand, if the worker was unable to work at the time of dismissal, there may be an additional discussion about:

• the validity of the dismissal medical examination;
• the need for social security leave;
• the suspension of the contract;
• the occupational origin of the illness;
• possible job security arising from a work-related illness.

Discriminatory dismissal and work-injury job security are different legal grounds and may, depending on the case, be discussed together.

Does being in remission remove the protection?

Not automatically.

Remission of cancer does not necessarily mean the complete end of medical care. The worker may continue to need periodic tests, medication, specialized follow-up or complementary treatment.

In the precedent involving skin cancer on the ear and in the auditory canal, the TST considered it relevant that the worker would need quarterly follow-up for a period of no less than five years.

For this reason, the analysis should not be limited to whether chemotherapy was taking place on the exact day of dismissal. It should be checked whether:

• treatment was still ongoing;
• follow-up care was needed;
• the company knew the history of the illness;
• the dismissal took place close in time to surgery, leave or a return to work;
• the employer showed a legitimate reason for the termination.

Does a dismissal during cancer always lead to reinstatement?

No.

The existence of the diagnosis helps form the presumption provided for in Precedent 443, but the company may try to show that the dismissal took place for a legitimate and independent reason.

The presumption is rebuttable; it is not an absolute prohibition on dismissing.

The company may overcome it, for example, if it consistently proves:

• the closing of the unit;
• the actual elimination of the position;
• a real restructuring that affected several employees;
• objective criteria used in the reduction of staff;
• lack of knowledge of the illness;
• a properly documented disciplinary reason;
• a technical or economic circumstance unrelated to health.

A generic claim is not necessarily enough. In the case of the assistant with breast cancer, the argument of a reduction in staff was weakened because the organization still had the same number of employees.

What signs may indicate a discriminatory dismissal?

Some circumstances deserve attention:

• dismissal soon after the company is informed of the cancer;
• termination during chemotherapy or radiotherapy;
• dismissal close to surgery;
• criticism related to the delivery of medical certificates;
• pressure to reduce appointments or treatment sessions;
• removal of duties after the diagnosis;
• negative evaluations appearing only after the illness;
• a generic justification of low productivity;
• comments about the cost of the health plan;
• statements that the worker will no longer be able to perform the job;
• immediate hiring of someone else for the same position;
• absence of the restructuring claimed;
• dismissal shortly after returning from leave;
• a dismissal medical examination that disregards recent medical reports.

These elements do not, on their own, guarantee recognition of discrimination. They may, however, form a relevant set of signs.

What evidence should the worker keep?

The worker should preserve documents related both to the illness and to the employment relationship.

Among the most important documents are:

• medical reports;
• tests confirming the diagnosis;
• certificates delivered to the company;
• proof that the certificates were delivered;
• records of surgeries and treatments;
• health plan documents;
• messages sent to a supervisor or to HR;
• emails about appointments or leave;
• INSS documents;
• the dismissal medical examination;
• performance evaluations before and after the diagnosis;
• warnings received after treatment began;
• the dismissal notice;
• the termination document;
• names of colleagues who witnessed comments or pressure;
• information about the hiring of another person for the position;
• evidence contradicting the restructuring claimed by the company.

It is also advisable to prepare a timeline recording:

1. the date of diagnosis;
2. when the company became aware;
3. the periods of treatment;
4. the surgeries performed;
5. the leave that took place;
6. the changes in professional treatment;
7. the date of dismissal;
8. the reason given by the company.

What rights may be recognized?

When the dismissal is declared discriminatory, the worker may seek different measures.

Reinstatement

Reinstatement restores the employment relationship. TST Theme 254 reaffirms that, once the dismissal of a worker with a serious illness that gives rise to stigma or prejudice is found invalid, there is a right to reinstatement.

Pay for the period of absence

Reinstatement may involve payment of salaries and other contractual amounts for the period between the dismissal and the return to work.

Depending on the case, the following may be discussed:

• salaries;
• the 13th salary;
• vacation pay plus one third;
• FGTS (the employer-funded severance fund);
• collective bargaining pay adjustments;
• benefits provided for in a collective agreement.

Double pay

Law 9,029/1995 allows a worker harmed by a discriminatory act to choose between:

• reinstatement, with full reimbursement of the entire period of absence; or
• receiving, in double, the pay corresponding to the period of absence.

The choice depends on legal strategy, the claims made and the circumstances of the case.

Moral damages

A discriminatory dismissal may give rise to compensation for moral damages.

In the case of the administrative assistant with breast cancer, the TST upheld compensation of R$ 20,000. That amount is not a standard for all cases. Each award is set according to the seriousness of the conduct, the extent of the harm, the situation of the parties and the evidence produced.

Restoration of the health plan

Restoration of the health plan may also be requested, especially when the worker depends on it to continue cancer treatment.

If there is a risk of interruption of chemotherapy, radiotherapy, surgery or another urgent procedure, it may be necessary to file a request for urgent relief (tutela de urgência).

Does the worker have to go back to the same company?

Not necessarily.

Law 9,029/1995 allows the option of receiving double pay for the period of absence instead of reinstatement.

The decision should consider:

• the continuation of treatment;
• the need for the health plan;
• the possibility of returning to the professional environment;
• the time that has passed since the dismissal;
• the emotional impact of the events;
• the legal viability of reinstatement.

The appropriate claim depends on the particulars of the case.

Is there a deadline to file a lawsuit?

As a rule, the worker has up to two years after the end of the contract to file a labor claim (see how the count works, with examples, in Deadline to File a Labor Lawsuit in Brazil). In the lawsuit, rights relating to the five years before filing can normally be claimed, subject to the particulars of each claim.

However, cases involving cancer may require faster action.

If the worker needs to recover the health plan, continue treatment or return to the job immediately, delay may make it harder to protect the right. Over time, documents, messages and witnesses may also disappear.

Conclusion

Cancer is recognized in TST case law as a serious illness capable of causing stigma or prejudice. For that reason, when the employer knows of the diagnosis and carries out the dismissal, a presumption may arise that the termination was discriminatory.

This does not make every worker with cancer absolutely secure in the job. The company may show that the dismissal resulted from a legitimate, objective reason independent of the illness.

Where the justification is not proven, or where the evidence shows that the treatment, the time off, the temporary drop in performance or the medical costs influenced the decision, the Labor Courts may declare the dismissal invalid.

The professional history, the medical documents, the employer’s knowledge, the timing of the termination and the consistency of the company’s justification are central elements in assessing the case. This article refers to Brazilian law only.

Frequently asked questions

Sources

• Law 9,029/1995 (discriminatory practices in the employment relationship)
• TST: Precedent (Súmula) 443 (discriminatory dismissal, serious illness, stigma or prejudice)
• TST: Theme 254 of the repetitive appeals (RR-0011349-11.2022.5.15.0026), judged on August 22, 2025 and published on September 5, 2025
• TST: Theme 254 of the repetitive appeals, complementary document
• TST: ruling on skin cancer of the ear and external auditory canal and application of Precedent 443
• TST, Fifth Panel: ruling in Ag-AIRR-1001196-48.2016.5.02.0033 (rapporteur Justice Alberto Bastos Balazeiro), November 10, 2021
• TST: Worker dismissed during breast cancer treatment will be reinstated (Fifth Panel, news of March 23, 2022)

About the author

Alex Antonio Vilanova

• Lawyer registered with the Brazilian Bar Association, Paraná Section (OAB/PR No. 89.071)
• Professor of Business Law and Human Rights

Education

• Bachelor’s degree in Law, State University of Ponta Grossa (UEPG)
• Master’s degree in Economics, State University of Western Paraná (Unioeste)
• Postgraduate specialization in Contemporary Civil Law and Civil Procedure
• Postgraduate specialization in Constitutional Law

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Informational content, reviewed on October 19, 2026, based on the rules and case law in force on that date. It does not replace a lawyer’s analysis of your specific case, and it refers to Brazilian law only.