Capacitismo nas empresas a partir da lei brasileira de inclusão sob a perspectiva do princípio constitucional da solidariedade.

Abstract

This study examines ableism in Brazilian companies based on Law 13.146/2015 (Brazilian Law on the Inclusion of Persons with Disabilities – LBI) from the perspective of the Constitutional Principle of Solidarity. The general objective is to verify whether the LBI allows for combating ableism in companies in light of the Constitutional Principle of Solidarity through an inclusive and anti-ableist corporate culture. The research question is: how does the LBI allow for combating ableism in companies in light of the Constitutional Principle of Solidarity in Brazil? To answer this question, the study adopts a hypothetical-deductive methodological approach, with an analytical method and bibliographic research based on books, periodicals, case law, scientific articles, specialized journals, statistical data, and relevant legislation. The research formulates two hypotheses to verify the effectiveness of the LBI in combating ableism in companies in light of the Constitutional Principle of Solidarity. The first hypothesis suggests that the LBI provides a sufficient normative basis to combat ableism in companies, provided it is complemented by effective internal policies that foster an inclusive and anti-ableist culture. The second hypothesis considers that, despite the legislative progress represented by the LBI, its isolated application is insufficient to eradicate ableism, as the absence of an inclusive organizational culture compromises its effectiveness. The relevance of this research lies in the persistence of structural barriers that hinder the inclusion of persons with disabilities in the labor market, despite normative advances. The study aligns with the Contemporary Constitutionalism research line of the Graduate Program in Law at the University of Santa Cruz do Sul, as it addresses access to work as a fundamental right and the difficulties imposed by the private sector in ensuring these guarantees. Additionally, it dialogues with the research focus of the advisor, Prof. Dr. Jorge Renato dos Reis, by addressing the intersections between the public and private sectors, demonstrating how the Constitutional Principle of Solidarity, using the LBI as a foundation, allows for finding alternatives to combat ableism and building a more inclusive labor market.The study concluded that, despite Article 93 of Law 8.213/91 establishing a quota for workers with disabilities or those rehabilitated by the INSS, supported by Article 7 of the Federal Constitution, Decree 6.949/09 (International Convention on the Rights of Persons with Disabilities), and the LBI, effective inclusion still faces challenges. Data from the 2023 Annual Social Information Report (RAIS) indicate that only 1.22% of formal workers are persons with disabilities, while the Continuous National Household Sample Survey (PNAD Contínua) shows that, whereas 66.4% of persons without disabilities are employed, only 29.2% of persons with disabilities are part of the workforce. This scenario partially confirms the second hypothesis, indicating that the guarantees provided by the LBI, even when guided by the principle of solidarity, are not sufficient to ensure inclusion and combat ableism. This is due to the persistent structural and attitudinal barriers in Brazilian companies. Therefore, for the LBI to be effective, it must be applied in conjunction with the Constitutional Principle of Solidarity and adapted to the specific realities of each organization, considering its culture and internal practices.