A proibição do uso de piercings e tatuagens como critério de seleção e contratação: liberdade de contratar ou discriminação estética?

Abstract

Our society is based on standardized criteria of beauty, defining what is or is not acceptable and seen as beautiful. The prohibition of the use of piercings and tattoos as a criterion for selection and hiring of employees is something that causes controversy in our society that, on the one hand sees as the right of the employer to contract of free form and, on the other, sees the injury to the employee , which would constitute the aesthetic discrimination. Thus, this monograph is dedicated to analyzing this collision of rights, analyzing the pre-contractual phase from the standpoint of objective good faith and the principle of equality as guiding employee selection, as well as whether the prohibition of these adornments is only the manifestation of the employer's freedom to contract or aesthetic discrimination. In addition, we will analyze judgments that demonstrate how the Labor Court has faced the issue and decided to repair the damage that can result from aesthetic discrimination. For the construction of this monograph, we use the dialectical method to analyze the two argumentative sides: the employer's freedom of contracting side, and the side of aesthetic discrimination supported by the employee when he is no longer hired by the use of piercings and tattoos. For this, bibliographical and documentary researches were carried out, besides the current legislation, scientific articles and jurisprudential analyzes.