Initial assessments of each case took place on November 19, resulting in a split decision. Supreme Court president José Antonio Dias Toffoli said requiring an exam on the Sabbath does not characterizer a violation of the right to worship. But Justice Luiz Edson Fachin said even probationary employees deserve to have their religious exercise respected and protected.
Court president Toffoli offered his report in the case of Geismario Silva dos Santo, a teacher employed in São Paulo State who was disciplined for not working on Friday evenings. Seventh-day Adventists believe the Sabbath begins at sunset on Friday and concludes at sunset on Saturday, meaning he could not work at the municipal public school during those hours.
Geismario, a resident of Pará, spent years of preparation for the position, but was unable to continue because of the recorded absences.
According to Toffoli’s report, “although protecting the freedom of belief and conscience and the principle of the free exercise of religious practices, the [Brazilian] Federal Constitution does not prescribe, at any time, the state … to promote conditions for the exercise or access to the determinations of each [faith community].”
What’s more, Toffoli argued that making such religious accommodations would disadvantage members of other religions, and those who practice no faith at all: “Admitting the creation of special conditions for the exercise of legal faculties based on religious belief would mean establishing a privilege that cannot be extended to those who have other beliefs or simply do not believe,” the court president stated.