Collective rights, racial discrimination and justice: determinants of the resistances to affirmative actions in judicial discourses
Author: Varella, Santiago F, santiagofalluh@hotmail.com
Department: Sociology
University: University of Brasilia, Brazil
Supervisor: Sadi Dal Rosso
Year of completion: 2011
Language of dissertation: portuguese
Keywords:
affirmative action
, collective rights
, racial discrimination
, judicial discourses
Areas of Research:
Racism, Nationalism and Ethnic Relations
, Law
, Human Rights and Global Justice
Abstract
This dissertation is about the first attempt of legal recognition of indirect racial discrimination in Brazil. The analyses were done over the documents of five lawsuits initiated by the public labour attorneys against the Distrito Federal’s branches of the largest Brazilian private banks. In such lawsuits, it was proposed the recognition of the existence of indirect discrimination and the support of the adoption of affirmative action policies to compensate the local black population for the consequences of past discrimination. The research focused on the resistance both to acknowledge discrimination and to support policies to counteract the latter. To explain the first type of resistance, ideologies that depict Brazil as a country without racial inequality or that reduce racism to its individual manifestations, or that attributes inequality to causes other than discrimination, are screened. Arguments revolving around the prospect of negative social consequences of the adoption affirmative policies, whether upon the purported racial harmony, or upon the economic order of capitalism, or upon 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 are no evidences of racial discrimination. In light of that, the research starts with an assessment of the consistency of this argument, as well as of some that frequently are advanced together with it. 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 to compensate black employees. The perceptions of the causes of racial discrimination led to conclude for the impossibility of compensating it, on the grounds that the inferior social status of black Brazilians would derive only from their own individual lack of ability, of the historical legacy, and the failure of the State in providing universal solutions. Not only the causes of racial inequality are deemed as too complex to be solved by affirmative actions, but, also, the effects of such policies would be negative. This is because they would increase the negative stigma of black people and foster inter-racial conflicts. For society, the negative consequence would be to switch to operate under privilege logic, rather than that of individual merit. For the Judiciary, it would not be possible to rule preferences for black employees, because there are no laws to supports such position. It is concluded that ideologies and interests got articulated to relieve the economic elite of eventual burdens that would have more incidence upon them, and also a strategy of the Judiciary elites to keep Republican traditions, avoiding dealing with collective rights.
