Surdezunilateral passa a ser reconhecida por lei como deficiência.

Law No. 14,768/2023, published on December 22, 2023, started to guarantee the rights of people with disabilities to those who suffer total deafness in just one ear, known as “unilateral hearing loss”. Until then, legislation only considered bilateral limitations (those that affect both ears) as a disability.

According to the explanatory memorandum of the new law, unilateral hearing impairment, as it interferes sensorially and psychologically with the full social participation of people with this limitation, including opportunities in the job market, must be compensated, among other measures, by the benefit of reservation of vacancies for people with disabilities in public hiring and competitions.

According to the new legal text, hearing impairment is considered to be a long-term limitation of hearing, total unilateral or partial or total bilateral, which, in interaction with one or more barriers, obstructs the person’s full and effective participation in society, on an equal basis. conditions with other people.

According to the law, anyone with a loss of 41 decibels or more, measured by an audiogram at frequencies of 500 hertz, 1 thousand hertz, 2 thousand hertz and 3 thousand hertz, will be considered deaf. Therefore, this condition measured on an audiogram in just one ear will characterize the sufferer as a person with a disability (PWD).

The change is important, in the labor sphere, as it impacts the fulfillment of the quota for people with disabilities, provided for in article 93 of Law 8,213/1991, which determines that the company with 100 (one hundred) or more employees is obliged to fill 2 % (two percent) to 5% (five percent) of its positions with rehabilitated beneficiaries or qualified people with disabilities.

Before the advent of this new law, cases of unilateral deafness were discussed individually within the Courts.

In the labor sphere, the majority of the Superior Labor Court had already considered unilateral deafness as a circumstance that defines the condition of a person with a disability[1]. However, the Ministry of Labor and the Public Ministry of Labor, in inspections and investigative procedures, still adopted the literal interpretation of article 4, item II of Decree nº 3,298/1999, as well as the intelligence of Summary nº 552 of the STJ[2] , which classified only bilateral deafness as a disability.

From the promulgation of Law No. 14,768/2023, the end of the judicialization of the topic is expected, as well as the possibility of automatic classification of people with unilateral hearing impairment as PWDs for the purposes of compliance with the legal quota of Law No. 8,213/1991, as long as the technical parameters defined by law are observed and as long as there is express consent of these professionals to join the quota.

It is important to highlight, finally, that the new law will be in force until the Executive Branch creates instruments for assessing disability, as provided in article 2, §2 of Law No. 13,146/2015 (Statute of Persons with Disabilities). In fact, §1 of the same provision states that the assessment of disability, when necessary, will be biopsychosocial, carried out by a multidisciplinary and interdisciplinary team, which will consider factors beyond the technical criteria measured in audiometry when characterizing hearing impairment.

Our team is available for any additional clarifications on the topic.

Contributed to this article: Felipe Araújo, lawyer in the consultancy area, and Isabella Magano, partner.

[1] The topic was standardized by the Special Body of the TST, in the judgment of RO-101637-15.2018.5.01.0000 (Edator Minister Ives Gandra Martins Filho, DEJT 08/03/2021).

In the same sense, for example:

Ag-RR-130892-94.2014.5.13.0009, 7th Panel, Rapporteur Minister Alexandre de Souza Agra Belmonte, DEJT 03/10/2023.

RR nº 0164200-75.2012.5.17.0011; 2nd Class; Rel. Delaide Miranda Arantes; 05/10/2018.

[2] STJ Summary No. 552 – “A person with unilateral deafness does not qualify as a person with a disability for the purpose of competing for reserved places in public competitions”