A inclusão social como fator de efetivação dos direitos fundamentais do trabalhador: uma visão constitucional sobre a deficiência

• Autor(a) principal: Tokunaga, Raissa Bressanim
• Data de Publicação: 2009
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/8487
• topic: Deficiência; Discriminação; Reserva legal; Integracao social; Pessoas portadoras de deficiencia -- Estado legal, leis, etc; Direitos fundamentais; Disability; Social inclusion; Fundamental rights; Discrimination; Legal reservation; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO DO TRABALHO

This master s degree dissertation concerns an extremely relevant subject, a subject that wakes people to a feeling of respect for individuality and survival at any cost. On the basis of the principle of equity, it seeks to address the rights of persons with disabilities, focusing particularly on the effectiveness of their individual rights. In this sense, it deals with the divergence between inclusion and integration, in addition to the bringing of awareness to society for persons with disabilities to be treated in an egalitarian manner, without any form of discrimination. From the beginning of this work, attention has been paid to the form of treatment of such individuals by using the expression that most suits the purpose of this study, and for this reason the form of treatment elected is the one adopted by the International Convention on the Rights of Persons with Disabilities, ratified by Brazil with constitutional amendment status on 10 July 2008. The expression person with disability has been adopted on the assumption that a disability should not be an adjective (as in the case of disabled person ) or a temporary state (as in the case of person having a disability ), since a disability is with a person or in a person. We seek to highlight the protection of the rights of such persons in three complementing areas: in the international context, through the analysis of international treaties on the subject; in the domestic constitutional scenario, through the study of the development of the matter in the light of the Federal Constitutions addressing in particular the rights brought about by the current Constitution; the insertion of the rights of persons with disabilities within human rights, focusing particularly on the dignity of human beings. A parallel is drawn with international law through the concept of reserve of the possible, with references to the domestic infra-constitutional law that sets forth a legal quota for employment of persons with disabilities. As such, the thesis concerning the factual impossibility of the subject matter of a required legal transaction is adopted, on the grounds of section 104, item II, of the Civil Code which regards with restriction the legal obligation to employ persons with disabilities, since in such case the State transfers to the private initiative the responsibility to provide citizens with minimum social rights. The conclusion is that indeed the inclusion of persons with disabilities in all social scenarios is, prior to any obligations on the part of private parties, obviously without declining their moral if not legal portion of such duty, a responsibility on the part of the State to provide the minimum conditions as are necessary for a dignified life, qualifying such persons for the labor market and as such satisfying where families fail. In the context of employment law, the State should prepare persons with disabilities for the labor market by creating public policies that provide minimum social rights. Only then would it be the case for private parties to have to satisfy their portion of responsibility by complying with the legal quota