Collective Rights, Racial Discrimination and Justice: Determinants of Resistance to Affirmative Actions In Judicial Discourse
Author: Varella, Santiago F, santiagofalluh@hotmail.com
Department: Departament of Sociology
University: University of Brasilia, Brazil
Supervisor: Sadi Dal Rosso
Year of completion: 2009
Language of dissertation: Portuguese
Keywords:
Judiciary Branch
, Collective Rights
, Racial Discriminatio
, Affirmative Action
Areas of Research:
Racism, Nationalism and Ethnic Relations
, Law
, Stratification
Abstract
This dissertation is about the first attempt to legally recognize indirect racial discrimination in Brazil. The research draws on analyses of documents from five lawsuits initiated by the public labour attorneys against the Distrito Federal’s branches of Brazils' largest private banks. These lawsuits were based on the premise that indirect discrimination ought to be legally recognized and advocated the adoption of affirmative action policies to compensate the local black population for past discrimination. The research focused on the resistance to acknowledge discrimination as well as the policies intended counteract the latter. The first type of resistance draws on ideologies that depict Brazil as a country without racial inequality or that reduces racism to its individual manifestations, or that attributes inequality to causes other than discrimination. Arguments about affirmative action policies' possible negative social consequences—whether upon the nation's purported racial harmony, the stability of capitalism, or the traditions of the judiciary—are also considered in order to explain the second type of resistance. The main argument of those who oppose affirmative action is that there is no evidence for racial discrimination. Given this, the research starts with an assessment of the consistency of this argument, as well as other similar arguments. It is shown that such arguments are not consistent and that the challenges of identifying discrimination are related to strategies to exempt the Banks from being liable for the compensation of black employees. Perceptions about the causes of racial discrimination led to the conclusion that discrimination could not be compensated on the grounds that the inferior social status of black Brazilians was rooted in their lack of ability, in historical legacy, and in the failure of the State to provide universal solutions. Not only were the causes of racial inequality deemed too complex to be addressed through affirmative action, but, also, the effects of such policies were thought to be negative. According to this logic, this was so because such policies would increase the negative stigma against black people and foster interracial conflicts. On a societal level, affirmative action would foster a privilege logic rather than one based on individual merit. For the judiciary, it would not be possible to rule preferences for black employees, because there were no laws to supports such position. The dissertation concludes that ideologies and interests got articulated in such a way that it helped got relieve the economic elite of eventual burdens, and that enabled judiciary elites to keep Republican traditions and avoid addressing collective rights.
