A discriminação de homens gays na dinâmica das relações de emprego : reflexões sob a perspectiva do direito fundamental ao trabalho digno

In the light of the fundamental right to decent work, as set by the Constitution of 1988, the aim of this dissertation is to investigate the remedies that Labor Law offers against employment discrimination on the basis of sexual orientation, especially the discrimination faced by gay men. For the most part, the arguments were based on bibliographic research. The study was initiated with a historical contextualization of culturally inherited prejudices against homoeroticism, from the Classic Antiquity to the present day. By examining the experiences of gay men in contemporary organizational context, this historic subside has served to clarify the fact that discrimination faced by these workers is not only a result of the reproduction of still lasting homophobic prejudices, but it is also nurtured by the work organization model which became widespread since the 1970s. Given these findings, the research turned to the analysis of the Democratic Rule of Law State, as the contemporary paradigm of constitutionalism settled by the Federal Constitution of 1988, focusing on its main elements: human dignity, pluralism and fundamental rights. The conclusion was that the elimination of discrimination is a requirement for the realization of these constitutional principles, and that this condition also concerns discrimination based on sexual orientation, even if this attribute is not explicitly listed by the law as a suspect classification. After all, the sexuality of each individual is part of their self-determination sphere protected by the law, as an intimate form of personal fulfillment. The research also found that the axiological meaning of work, as a fundamental right guaranteed by the Constitution, is bound to the realization of human dignity. Therefore, the constitutional protection is aimed to the types of work that dignify man, not to the degrading work, which exploits the worker or denies him the conditions to achieve selfrealization and to participate as an equal in social life. The fundamental right to decent work is thus incompatible with all forms of discrimination in respect of employment, including the discrimination faced by homosexuals because of their sexual orientation. The last phase of the research was the analysis of the precedents set by the Superior Labor Court regarding employment discrimination against gay workers. It was found that, in general, the Court has been adopting an inclusive constitutional discourse, thus making Labor Law an instrument for protecting the dignity of homosexuals in cases of homophobic discrimination.