Quotas and Diversity: Legal Challenges in Implementing Inclusion Policies (People with Disabilities and Apprentices)

The Quota for People with Disabilities and the Cost of Non-Compliance

In the case of people with disabilities, companies with 100 or more employees must allocate 2% to 5% of their positions to rehabilitated beneficiaries or qualified people with disabilities, depending on the size of the workforce. A lesser-known point, which frequently leads to convictions, is the rule in paragraph 1 of the same article: the unjustified dismissal of an employee with a disability depends on the prior hiring of a replacement in a similar condition. Companies that meet the percentage but dismiss employees without observing this requirement remain exposed to requests for reinstatement and compensation. The cost of non-compliance has also increased. In 2026, the administrative fine per unfilled vacancy starts at approximately R$ 3,500 and can reach close to R$ 350,000, depending on the severity of the infraction.

The Apprenticeship Quota and the Perspectives of the Apprentice Statute

In apprenticeship programs, medium and large companies must hire between 5% and 15% apprentices, a percentage calculated based on the number of positions requiring professional training. Much of the legal uncertainty lies precisely in mapping the calculation base, as there is controversy about which positions are included or excluded. The apprenticeship contract is a special type of contract, for a fixed term of up to two years, aimed at young people aged 14 to 24. For apprentices with disabilities, there is no age or duration limit, which brings the two inclusion policies closer together. And the scenario is expected to become more rigorous: the Apprentice Statute, approved by the Chamber of Deputies in April 2026 and still under consideration, provides for a fine of R$ 3,000 per apprentice not hired, per month, without a ceiling, and doubled in case of recurrence.

The TST's Understanding: Obligation of Demonstrable Commitment

The most common argument used by companies facing fines is the lack of qualified candidates in the market. However, the Judiciary does not automatically accept this claim. The Superior Labor Court (TST) requires consistent proof of concrete and continuous efforts, such as broad dissemination of job openings, partnerships with rehabilitation institutions and training entities, accessible selection processes, and records of calls and interviews conducted. When this diligence is documented, the TST itself has dismissed fines and convictions for collective moral damages. This was the case when the 6th Chamber reaffirmed that the company is not liable for the failure to hire when it proves repeated efforts to fill the quota (RRAg-319-26.2018.5.13.0009). In short, the courts treat the issue as an obligation of demonstrable commitment. Those who do not build this evidence over time will hardly be able to avoid being fined.

Multiplication of Exhibition and Inspection Fronts

The avenues for exposure have multiplied. Labor inspectors cross-reference data from eSocial (Brazilian social security system) and identify quota non-compliance almost in real time. The Labor Prosecutor's Office initiates civil investigations and proposes conduct adjustment agreements, the non-compliance of which leads to enforcement actions with substantial fines. Public civil actions often combine obligations to hire with requests for compensation for collective moral damages. And there is also the reputational effect, increasingly relevant in times of ESG (Environmental, Social, and Governance) requirements and due diligence in supply chains.

There is also a less obvious risk, which is fulfilling the quota only on paper, without real inclusion. The Statute of Persons with Disabilities (Law No. 13.146/2015) requires accessibility and reasonable accommodations, and discriminatory practices in selection, remuneration, or dismissal generate individual convictions even when the percentage is met. Diversity programs that collect sensitive data, such as health information, must also comply with the LGPD (Brazilian General Data Protection Law). On the other hand, recent decisions have valued the purpose of the law and recognized, for example, that a reduced workday demonstrably necessary for an employee with a disability is a valid reasonable accommodation for quota calculation. A well-structured inclusion program, therefore, also serves as a defense.

From a practical standpoint, the recommendation is to begin by diagnosing the basis for calculating the two quotas, formalizing an inclusive recruitment policy, maintaining an updated dossier of hiring efforts, reviewing the termination processes for employees with disabilities, and monitoring the progress of the Apprentice Statute. Our firm supports companies in all these stages, both preventively, with the structuring of policies, quota calculations, and compliance routines, and in litigation, acting in defense against administrative proceedings, civil investigations by the Labor Prosecutor's Office, and lawsuits involving the subject.

Article written by: Rafael Mello, Israel Cruz and Ana Vasconcelos.