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ABSTRACT
This article discusses Brazil’s affirmative action policies of racial quotas. It explores the reasoning behind such policies as well as the arguments advanced by their main critics. After presenting the policies’ origins, their concerns about the beneficiaries, and the specificities of the Law of Racial Quotas in Federal Public Service, the authors deconstruct the legal case of Carlos Delano de Araújo Brandão versus Banco do Brasil, taken from the area of labor justice. The case involved the application of racial quotas to fill positions in the federal public service sector and has gained national prominence because it continues to be a model or standard for the implementation of affirmative action and the Law of Racial Quotas. Its examination allows the contextualization and discussion of the most commonly used justifications for rejecting such policies. The article concludes that, despite their years of existence in Brazil, affirmative action policies continue to face obstacles that prevent their full application and limit their effectiveness.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. Movimento negro is here understood in a general conception as the aggregation of black organizations and social movements.
2. For more details about multiculturalism and affirmative action, see Igreja (Citation2005b) and Campos and Feres Júnior (Citation2014).
3. The IBGE is the institution responsible for carrying out the national demographic censuses. It has also conducted long-term studies on the ethnoracial characteristics of the Brazilian population; see Petruccelli and Saboia (Citation2013).
4. The expression ‘racial democracy’ goes back to the ideological narrative, popular since the 1930s, according to which Brazil would be a racial paradise, free from discrimination on the basis of color that characterizes other settler societies (Du Bois Citation[1903] 2007). Since the 1940s and 1950s, with Donald Pierson, Charles Wagley, and especially Gilberto Freyre, the expression gained weight, and was associated with the idea that in Brazil relations between blacks and whites evolved without any racial prejudice. Since then, the expression has had two connotations: 1) it points to Brazilian society as being an ethnic-cultural melting pot, edified on the widespread practice of miscegenation; 2) it evokes the equal opportunities and rights shared by all Brazilians, regardless of race. Although dismantled as a false ideology, racial democracy nonetheless remains alive today, both as an ideal to guide the action of social actors and as an obstacle to the demands for effective democratization of social relations. For an evolution of the concept, see Guimarães (Citation2002).
5. According to Daflon, Feres Júnior, and Campos (Citation2013), the major beneficiaries of racial quotas in education are the public-school graduates. This is because a structural aspect of education in Brazil means that the best institutions of basic education are private and thus serve upper-class students, while lower quality basic public education serves poor students. For the distribution of percentages in racial quotas in education see: http://portal.mec.gov.br/cotas/sobre-sistema.html (Accessed on August, 14, 2018).
6. In the colonial era, quilombos, were a main form of resistance against slavery, housing five or more black fugitives at a time (Moura Citation1988). Besides the common ancestry, remaining communities of quilombos also share their own political and social organization in addition to typical cultural practices forming a specific ethnic group. Since the passage of the Federal Constitution in 1988, the remaining communities of quilombos have been recognized by the state as a specific population group (Jaccoud Citation2009).
7. The first affirmative action programs for black people in higher education started in 2002 at the State University of Rio de Janeiro (UERJ), Darcy Ribeiro North Fluminense State University (UEN), and the Bahia State University (UNEB), at the state level. At the federal level, the University of Brasilia (UnB), in June 2004, was the first federal university to adopt a system of admission quotas for blacks.
8. For a chronology of norms predicting racial quotas for public tenders in state and municipal level public service positions, see Silva and Silva (Citation2014) and Ferreira (Citation2017).
9. Article 39 states, ‘The public authorities will promote actions that ensure equal opportunities in the labor market for the black population, including through the implementation of measures aimed at promoting equality in public sector hiring and encouraging the adoption of similar measures in companies and private organizations.’
10. In the system of constitutional urgency, which may be requested by the President of the Republic for projects of his/her initiative, the Chamber of Deputies and the Federal Senate must express their views on the proposal, each successively, within 45 days, as required by Article 64, §§1 and 2, of the Constitution of the Federative Republic of Brazil.
11. For an approach to Bill 6,738/2013, see Silva and Silva (Citation2014) and for a detailed analysis of the various aspects of Law No. 12,990, see Ferreira (Citation2017).
12. Federal Law No. 8,122 of 1990 contains the Federal Public Service Statute, and provides for the reservation of 20% of vacancies in federal public tenders for persons with disabilities.
13. Article § 1 states that The reservation of vacancies will be applied whenever the number of jobs offered in the public contest is equal to, or greater than three (3).
14. ADPF is a mechanism of constitutionality control, which can be used against a public policy that is not in accordance with the rights and guarantees listed in the constitution. In the case of ADPF nº 186, the STF decided that race-based affirmative action programs are constitutional, with the following requirements: (i) they must reach determined social groups; (ii) in a timely manner, that is, it must refer to a specific public policy; (iii) by giving them certain competitive advantages, to compensate for the discrimination suffered; (iv) for a limited time, until it reaches the desired objectives and (iv) to enable them to overcome inequalities arising from particular historical situations. For a discussion on the topic, see Carvalho Netto and Ferreira (Citation2017).
15. Of the ten judges of the Regional Labor Court, which make up the Full Court – the body competent to consider constitutional issues – only three judges voted in favor of unconstitutionality of the norm.
16. In sum, Azevedo (Citation2014) suggests that the decision on ADPF No. 186 do not anticipate the constitutionality of racial quotas in public tender, since it deals with different values; Bergstein and Correia (Citation2012) insist on the double benefit thesis, claiming that racial quotas in education have already solved the problem in public tenders; Bonadiman (Citation2014) suggests that racial-based quotas in public service and even in the education violates the principle of equality; Senhoras and Souza Cruz (Citation2015) argue that the Racial Quotas Law violates the principle of equality and meritocracy, and does not incorporate other vulnerable ethnic-racial groups.
17. The Vargas era covers the years 1930–1945, when Getúlio Vargas ruled as dictator (1930–1934), then as a congressionally elected president (1934–1937), and then again as dictator (1937–1945).
18. Decree-Law 1843/1939 obligated public contractor companies or individuals to maintain two-thirds of Brazilian employees in their staff.
19. PCRI is a partnership established between the Technical Cooperation Agency of the British Ministry for International Development and Poverty Reduction (DFID), the Ministry of Health (MS), SEPPIR, the Federal Public Prosecutor’s Office (MPF), the Pan American Health Organization (PAHO) and the United Nations Development Program (UNDP). PCRI is composed of two components: one that focuses on municipal actions and the other that focuses on health actions (Fonseca Citation2015).
20. According to the rapporteur, Justice Luís Roberto Barroso: ‘The imbalance promoted by the affirmative action policy in question is in accordance with the principle of isonomy. It is based on the need to overcome the structural and institutional racism that still exists in Brazilian society and to guarantee material equality among citizens through a more equitable distribution of social assets and the promotion of recognition of the Afrodescendant population’ (Supremo Tribunal Federal Citation2017).
21. In Brazil, higher education institutions are differentiated as public (federal, state and municipal) and private (religious, entrepreneurial and proprietary). According to the National Institute for Educational Studies and Research ‘Anísio Teixeira’ or INEP, 38.2% of public institutions’ lecturers hold a Ph.D. degree, and the student to teacher ratio reaches an average of 12.5 students per teacher, which provides a better quality compared to private institutions (see Chavez Citation2017).
22. According to ENAP (Citation2014) the percentage of distribution of civil servants in federal institutions, according to race or color were, in July, 2014, as follow: White (51,7%); Brown (pardo) (22,4%); Black (preto) (4,0%); Asian (amarelo) (3,4%); Indigenous (0,3%); not informed (18,2%).
23. For example, in terms of hunger (Rossi Citation2014); illiteracy (Rosemberg Citation2005); genocide (Flauzina Citation2008), sanitary emptiness (http://mapadeconflitos.ensp.fiocruz.br), work in situations similar to slavery (Paixão et al. Citation2010), work scope (DIEESE Citation1999), discrimination (Moreira Citation2017), inhumane conditions of the prison population (Pires and Freitas Citation2018), barriers to access to education and information (Cury Citation2008).
24. According to Lemp (Citation2019): ‘[…] the debate around affirmative action might resurface and might again serve as a crystallization point for discussions of racism and racial inequality in Brazil–problems that the Bolsonaro government will probably neglect as well as aggravate. It is difficult to foresee the next steps on the theme, but the need to review and evaluate the two policies in universities and public service after their sunset clause of ten years may generate a new wave of opposition. One possible scenario is that both laws will simply phase out in 2022 resp. 2024 – with the chances of reimplementation being extremely small under a Bolsonaro administration.’
25. The authors are part of the Latin American College of Global Studies, a FLACSO-Brazil program, an international, multidisciplinary, and interdisciplinary academic space, especially in the social sciences and humanities, oriented towards the reflection and analysis of the conditions for the production of inequalities and their effects on the different dimensions of social life, as well as mitigation strategies in the global context. Thus, as a necessary development of its activities, the College constitutes a space for reflection on the making of Latin American Social and Human Sciences, and the role of the area and its researchers in the international scientific field.
Additional information
Notes on contributors
Rebecca Lemos Igreja
Rebecca Lemos Igreja teaches Latin American studies and law at the University of Brasilia and coordinates FLACSO’s Latin American College of Global Studies in Brazil. She is also involved in several international projects including the Interdisciplinary Studies Laboratory on Access to Justice and Rights in the Americas (LEIJUS), the Mexico, Caribbean, Central America and Brazil Comparative Studies Group (MeCACB-UnB), the Network of Empirical Studies in Law (REED-Brazil), the Institute of Justice for Afrodescendants in Latin America (OJALA/FIU-USA), and the Project Inequalities, Discrimination et Racism (INDIRA - France, Mexico and Brazil).
Gianmarco Loures Ferreira
Gianmarco Loures Ferreira is a researcher at the Latin American College of Global Studies, a FLACSO-Brazil program, and member of executive committee of Institute of Justice for Afrodescendants in Latin America (OJALA). He is currently completing a Ph.D in Law, State and Constitutional Rights at the University of Brasília, with research focused on race relations. He is also involved in the Interdisciplinary Studies Laboratory on Access to Justice and Rights in the Americas (LEIJUS), the Mexico, Caribbean, Central America and Brazil Comparative Studies Group (MeCACB-UnB), and Center for the Study of Law and Black Atlantic (MARÉ). He is a public attorney for the state of Minas Gerais, Brazil.