"A Mulato cannot be prejudiced" : the legal construction of racial discrimination in contemporary Brazil

Abstract

This dissertation, an in-depth empirical study of Brazilian racial discrimination law, examines the trends in complaining and surprising variation in official decisionmaking over the past decade. I collected more than 300 racial discrimination complaints, police investigations and court proceedings filed since 1989. I claim that Brazil's racial ideology and its theory of racial discrimination as an act of racial prejudice have been jointly constituted and, in turn, fully shape the making and the using of anti-discrimination law. I show that Brazil constructed racial discrimination narrowly compared to US theories of racial discrimination and the Brazilian understanding of other forms of discrimination, such as gender and age. Brazilians disproportionately file racial discrimination complaints about insults by a neighbor or co-worker. Officials treated these and most allegations as private, interpersonal disputes, even for allegations of firing and other problems protected in the law. I located approximately 40 findings for the plaintiff, a small fraction of the tens of hundreds of allegations, and analyze the variation in judicial inquiry and outcomes. Brazil's racial ideology and weak rule of law strongly influenced litigation. Defendants destroyed evidence and threatened plaintiffs and witnesses. Officials often erased the testimony of Black plaintiffs and witnesses in their holdings. Defendants often claimed to be Mulato or to have treated the plaintiff cordially as evidence of being Brazilian and inherently unprejudiced. Many officials accepted that defense. I hold the Brazilian theory of racial discrimination as overt prejudicial acts responsible for the use of the law.

(cont.) The law has focused attention on the mind and attitude of the aggressor. Although all judges invoke their ideology in their findings, Brazil's anti-discrimination law has increased that tendency by requiring judges to decide whether a defendant was prejudiced. Instead of providing clear standards to try cases, the law has encouraged judges to consult their own racial ideology.