The Ideology of the Brazilian Nation and the

Brazilian Legal Theory of Racial Discrimination

Seth Racusen, Ph. D.
meyer@mit.edu
seth7r@hotmail.com



Prepared for delivery at the 2003 Meeting of the Latin American
Studies Association, Dallas, Texas, March 27-29, 2003.



(DRAFT PAPER: not for citation but comments especially welcome)



ABSTRACT: This paper examines the interpenetration of Brazilian anti-
discrimination law and the ideology of the Brazilian nation as a harmonious racial
democracy. I argue that this ideology insulates social practice from political and legal
scrutiny. Colorblind legal doctrine, which formalizes this ideology that color does not
matter, capitalizes on the fixity of law in its continued emphasis of historical, overt
practices rather than contemporary, subtler practices that became pervasive after the
adoption of anti-discrimination law. The paper examines theories of racial
discrimination in Brazil and the US, the development of the Brazilian legal theory of
racial discrimination, and several illustrative court cases. Compared to US doctrine,
Brazilian colorblindness provides a more compelling fiction to both public and
private actors and casts a longer shadow over the legal theory of racial discrimination
and social practices.


1
To take a single joke, which is in the nature and the spirit of Brazilians, as racial
prejudice, will have serious consequences . . . that will animate the angry and publicity-
seeking, and will cause bloody racial struggles, . . . a virus that devastates peoples and
nations.
1
- Appellate Judge Bittencourt, Brasilia 1997

The presiding judge held that Marco Formigas newspaper column that compared
a Black Senator and Mayoral candidate of the city of Rio de Janeiro to a monkey did not
constitute racist communication. Brazilian anti-discrimination law condemns social
communication that practices or incites racial prejudice as a non-bailable felony.
Consequently, judges require evidence of prejudicial commentary that demonstrates
criminal motivation, a very high standard. In characterizing the journalists racist
metaphor as a joke, the judge diminished the allegation in comparison to the nature
and spirit of Brazilians. In his view, the allegation could generate graver repercussions
than the article. In other words, had the plaintiff prevailed, she would have been the
real racist.
2

This opinion illustrates the interpenetration of Brazilian anti-discrimination law
and the ideology of the Brazilian nation. The judge placed the defendant and his actions
within, and the plaintiff and her actions outside, the Brazilian nation. According to the
ideology of the Brazilian nation, Brazilians formed a single race blended from cultures
and persons from Europe, Africa and the Americas, whose special bond makes
Brazilians incapable of discriminating against each other. Thus, color does not matter
because Brazilians are inherently colorblind. I argue that this ideology insulates social
practice from legal scrutiny and constructs court disputes as contests over the
Brazilianness of the principals rather than evaluations of their substantive claims.
This paper examines how the ideology of the nation influences anti-discrimination
doctrine. Anti discrimination law defines unacceptable social practices against
designated others which requires an account of who belongs to the nation and what
rights that membership conveys. The ideology of the nation expresses membership
and standing which anti-discrimination law draws upon to delineate relations between
societal members and the boundary between members and others.
In Brazil, the ideology of the nation and the theory of racial discrimination are
highly interpenetrated. The laws theory of racial discrimination strongly reflects elite
and popular ideology that declared racial discrimination extra-Brazilian. Brazilian
judges have incorporated that ideology into their holdings. The relationship between
ideology and doctrine is more organic in Brazil than in the US. US judges elaborated a
colorblind doctrine by invoking egalitarian ideals in their opposition to anti-discrimination
policy. Compared to the US doctrine, Brazilian colorblindness is more compelling
because of the greater visibility of its claims, the force of history, and the power of the
mythology of belonging to the nation. (Anderson, 1991; Addis, 1991) Brazilian
colorblindness provides a more compelling fiction (Anderson, 1991) to both public and

1
Apelao Criminal N. 14.291/94. 1
st
Turma Criminal of the Tribunal de Justica do Distrito
Federal. Website of the Tribunal de Justica do Distrito Federal e dos Territories.
http://www.tjdf.gov.br/. Consulted 8/6/99.
2
Ibid.

2
private actors and casts a longer shadow over law and social practices. I locate the
difference between US and Brazilian colorblindness within their respective imagined
communities: (Anderson, 1991) either a nation that permits individual differences as
private characteristics, or that seeks to absorb or blur those differences into a
homogenous whole. (Thornberry, 1991) In the American account, actors may not act
upon those differences that they may or may not see, while in the Brazilian account,
actors cannot see differences that do not exist. Both accounts are fictional. Markets
discriminate, which the US approach does not adequately address, (Post, 2001, Siegel
2000) and Brazilians recognize each others color (Blanco, 1978, Dzidzienyo, 1971) and
act upon that recognition. (Bento, 1988; Hasenbalg and daSilva, 1993)
Colorblindness advances claims about public policy, private actors acting in
public roles, and the nature of private persons. The first claim is that public sector
policies do not make distinctions based upon race or color. The second claim is that
private actors also do not make such distinctions in their public capacities, such as
hiring others. (Goldberg, 2002) Those claims have been advanced since the ending of
slavery (1888) in Brazil but only the past 25 years in the US. Brazilian colorblindness,
with analogs in other Latin American countries, (Hernandez, 2002; Goldberg, 2002)
projects the melding of persons into a unified nation with no salient differences, which
generates claims about harmonious private relations. Whereas the US national
community did not historically include African Americans, (Goldberg, 2002) the Brazilian
nation included Blacks, Browns, and Indians.
3
Thus, the Brazilian variant also
makes a third claim about the nature of its national members.
The significance of Brazilian colorblindness is two-fold. First, colorblind ideology
intimidates and disarms opposition through the power of the mythology of belonging to
the nation. Because of rampant mistreatment on multiple bases, a poor Black or
Brown may not know whether particular mistreatment is based on race or class.
4

Further, protesting racial discrimination in Brazil or most Latin American countries
represents an admission of being the type of person who might be discriminated
against - . . . Black, . . . untrustworthy, stupid and so on.
5
Thus, the mythology of
belonging to the nation protects discriminatory social practices from popular challenge.
Second, colorblind legal doctrine insulates social practice from legal scrutiny. In its
continued emphasis of historical, overt practices rather than contemporary, subtler
practices, colorblind doctrine draws upon laws fixity. In Brazil, this represents a double
displacement, since the law prohibits social practices of the North American segregatory
past.
In this paper, I explore how the ideology of the Brazilian nation shaped the
Brazilian theory of racial discrimination and how the two have influenced judicial
decision-making. First, I compare the theories of overt and covert discrimination in
Brazil and secondarily in the US and show that the theory of covert discrimination,

3
Brazilians identify in colors and not races. I present the census color categories, White,
Brown, Yellow, Black, and Indian in quotations.
4
See Heringer in Bowser (1995).
5
See Wade (1997, p57), who discusses the reluctance of Blacks in Columbia to acknowledge
discriminatory experiences.

3
although also limited, provides more promising options for a complainant than the
theory of overt discrimination. Second, I examine the role of the ideology of the nation
in the development of Brazilian theory of racial discrimination as overt discrimination.
Third, I examine several court cases that illustrate judges reliance upon the ideology of
the nation in their application of the law and their interpretation of the principals
behavior. Finally, I consider the implications of these findings for the relationship
between the ideology of a nation and its theory of racial discrimination. I argue that the
all-encompassing conception of the nation, the Brazilian conception, represents a most
compelling ideology that thoroughly penetrates legal theory and social practice.

Theories of Discrimination
Law theorizes the social practices it seeks to regulate. Anti-discrimination law
defines discrimination in specifying individual or institutional social practices that
disadvantage others at designated times, places and contexts for impermissible
reasons. The theory underlying those specifications reflects and articulates the
ideology of the nation in identifying permissible and impermissible practices against
designated persons.
Compared to the dynamic nature of social practice, law is relatively static.
(Siegel, 2000) In Brazil and the US, post-anti-discrimination law employers know not to
make an overt statement. (Turner, 1995; Racusen, 2002) An employer can easily
couch discriminatory practices in other terms. (Appiah in Post, 2001; Post, 2001) In the
US, the increased focus upon motive-centered doctrine is problematic (Krieger, 2001)
because decision-makers presume whiteness as a standard (Wildman, 2000;
Lawrence, 2001) which influences their evaluation of specific traits, including which
traits assume significance. (Matsuda, 2000) In Brazil, the presumption of whiteness is
evident in the evaluation of clothing, hair, appearance, and personality.
6
An
employment screen, boa aparncia, (literally good appearance and connoting
whiteness) developed after the passage of the 1951 anti-discrimination law.
(Nascimento, 1982) This criterion, now outlawed in two states, (Silva, 1998)
demonstrates the deep interpenetration of race and class.
Colorblind doctrine capitalizes on the static nature of law in comparison to the
dynamic nature of social practice. The principle of discrimination stipulates treating
equal things equally and different things differently, which makes pivotal the
determination of what makes two people or two kinds of people morally alike. (Appiah
in Post, 2001) Contemporary US anti-discrimination doctrine does not distinguish
remedial policies from discriminatory practices but treats all differentiation as equally
problematic. (Post, 2001; Siegel, 2000) The doctrine condemns overt discrimination,
such as the historical, segregatory practices of the US, even though societal practices
now tend to be covert. (Turner, 1995) In contrast, societal practices adapt readily to
the law (Siegel, 2000) and tend toward covert practice after the passage of anti-

6
In one instance, a supervisor explicitly linked the two: harassing a Black female worker woman
verbally and sexually for having long hair and because he didnt like Blacks. Departamento de
Inquritos Policiais e Policia Judiciaria (DIPO) Proc. No. 43.362/94-1. Poder Judicirio de So
Paulo.

4
discrimination law. (Turner, 1995) Contemporary Brazil doctrine also condemns the
overt segregatory practices of the US past. (Silva, 1994)
I distinguish theories of overt and covert discrimination in Brazil and the US. In
both countries, the clearest theory of racial discrimination is overt discrimination: an
openly, overt act of prejudice, such as an aggressor blocking access to a building and
stating, I will not let you enter because you are Black. That statement and action
provide unconvertible evidence of prejudicial intent and action.
The theory of covert discrimination pertains to circumstances without overt
practices. Employers routinely differentiate between potential employees in a dynamic
labor market,
7
by stipulating job criterion. To evaluate which differentiation is
permissible, this theory of discrimination draws upon the Aristotelian principle that
specifies the equal treatment of equals and the unequal treatment of unequals.
However, that principle yields very different results depending upon whether the starting
point emphasizes the similarities or the differences. US doctrine, which emphasizes the
similarities, draws upon a notion of individuals with private differences competing in a
market that does not reference those characteristics. Its anti-discrimination doctrine
seeks to rationalize all characteristics and distinguish relevant from irrelevant
characteristics for market functioning. In Brazil, an all-encompassing nation has
supposedly swallowed difference, which has yielded a relational and hierarchical
colorblind doctrine that emphasizes differences. Brazilian doctrine stresses the
uniqueness of human beings with infinite attributes that convey worth. (DaMatta, 1991)
This doctrine serves to undermine the salience of difference because the possible
influence of infinite attributes diminishes the importance of any single attribute.
Of the two theories of discrimination, the theory of covert discrimination better
corresponds to the bulk of discriminatory problems. The theory of overt discrimination
requires a smoking gun that rarely exists. The theory of covert discrimination is limited
by individualist market principles in the US, relational notions of equality in Brazil, and
the embeddedness of bias within decision-making in both countries. In this rest of this
section, I discuss these two theories of discrimination.
8



7
I suspect that the alleged absence of discriminatory problems in rural Brazil is a consequence
of the more static nature of society, the legacy of a much weaker citizenship tradition, and the
weaker rule of law. In a more static society, societal members seldom compete for new
opportunities and encounter market behavior and employer biases. Indeed, rural Afro-
Brazilians perceive racial discrimination as something that occurs in Brazilian cities. (Twine,
1998)
8
Two important theories of discrimination employed in the US and elsewhere, direct and indirect
systemic discrimination, have no Brazilian counterparts and are not discussed in this paper.
Direct systemic discrimination, the US theory of systemic disparate treatment, prohibits
widespread discriminatory practices that affect a targeted class rather than an individual.
Indirect systemic discrimination, the US theory of systemic disparate impact and known as
indirect discrimination in Europe, prohibits facially neutral practices that produce unjustifiable
discriminatory outcomes to a target class. For both theories, plaintiffs rely on statistics to
advance an inference of discrimination. Other countries have developed stronger theories of
indirect discrimination than the US. See Hunter (1998).

5
Covert Discrimination
The theory of covert discrimination corresponds to the larger body of
discriminatory practices without direct defendant admission of intent. In covert cases,
judges infer intent from the defendants conduct if deemed discriminatory. I contrast the
US theory of disparate treatment and the Brazilian theory of employment discrimination
as unjustifiable differentiation on the basis on age, gender, and height and argue that
each theory reflects the ideology of its nation.
In the overwhelming majority of US discrimination cases, plaintiffs allege
discriminatory treatment through the theory of disparate treatment based upon indirect
evidence. (Brooks 2000) Under the US burden-shifting approach, a plaintiff first
advances a viable claim of racial discrimination, such as having been treated worse
than a comparable other person on the grounds of race, sex or other protected
characteristic. The most common showing of discrimination satisfies the four prongs of
the McDonnell-Douglas test that a plaintiff (1) belongs to a protected group (2) applied
for a job for which he was qualified and the employer was seeking applicants; and that
the employer (3) rejected the plaintiff and (4) continued to seek candidates after the
rejection. The burden then shifts to the employer who must demonstrate a legitimate
business justification for the discriminatory practice. If the employer has offered a
plausible rationale, the burden shifts to the plaintiff. The plaintiffs rebuttal strategies
include showing evidence of statistical discrimination, that the employer presented false
information or that similarly situated persons were treated differently.
9
The burden-
shifting approach requires employer justification, provides the plaintiff access to
evidence helpful for the rebuttals, and generally distributes evidentiary burdens.
US courts have narrowed this theory of discrimination by requiring stronger
evidence that an employer had not been colorblind. The US Supreme Court tipped the
burden-shifting formulae by increasing the plaintiff burden to show intent and causality
that an employer can more easily refute. (Wards Cove Packing Co. V Atonio, 490 U.S.
642, 1989) Thus, US courts have increased the presumption of the colorblind
employer, which Post likened to the screen used to shield the identity of musicians at
orchestra auditions, a time and context-limited approach. However, the hired musician
cannot remain behind the screen and then must have a gender and race, and the court
does not operate behind a screen. Finally, he argued that courts continually make
gendered determinations and that even rationally functional standards can perpetuate
discrimination. (Post, 2001)
The Brazilian theory of covert discrimination is potentially stronger than the US
theory, based upon constitutional protection of equality in the law and constitutional
prohibition of employment discrimination. The standard to trigger burden-shifting is not
so clearly delineated but the evaluation of an employers rationale for an impermissible
discrimination against Constitutional norms has been influentially discussed by the
prominent Constitutional scholar, Celso Bandeira de Mello. (Mello, 1993) De Mellos
doctrine requires a showing of a Constitutionally-permissible business necessity.
Brazilian judges have increasingly invoked razoabilidade (reasonableness), a standard

9
For a useful survey of plaintiff rejoinders to employer justifications under individual disparate
treatment, see Player, 1992.

6
of justification to determine if a particular criterion is reasonable for a particular
position. (Barroso in Vianna, 2000)
The concept of razoabilidade draws from North American notions of procedural
and substantive due process and the German notion of proportionality. The standard
includes four elements: (1) internal, whether a rational relationship exists between the
means and the ends of a policy; (2) external, whether the policy is consistent with the
constitution; (3) the necessity of a measure: whether a less onerous alternative exists;
and (4) the proportionality between the burdens and benefits of a measure.
10
The first
two characteristics resemble the rational basis standard in the US that asks whether a
policy implements a legitimate state interest and demonstrates a rational relationship
between its means and ends. The third element corresponds to the higher US standard
of strict scrutiny that asks whether a policy is necessary and narrowly tailored. Finally,
the fourth element originates from the German notion of proportionality.
Razoabilidade, a more demanding standard of review than the US requirement of
a reasonable business justification, sharply contrasts the highly idiosyncratic nature of
selection processes in Brazil. In practice, Brazilian courts have inconsistently applied
burden-shifting to scrutinize employer justifications in settling allegations of covert
discrimination, upholding hierarchical distinctions for more privileged occupations and
permitting relational determinations in less privileged occupations. I suggest that this
reflects a hierarchical notion of human beings as unique individuals who merit treatment
according to their quality, often expressed as standing. (DaMatta, 1991)
Compared to their handling of allegations based upon race and gender, Brazilian
courts have most consistently scrutinized employer rationales for discriminatory
allegations based upon age and height. Brazils Supreme Federal Court (STF), the
ultimate authority for the constitution, and the Superior Court of Justice (STJ), the
highest appeal court for most civi l or criminal allegations, have repeatedly overturned
age criterion that exceed constitutionally mandated requirements.
11
In one case, the
Court held that a legally established maximum age of 40 years for the position of
Procurador do Estado (State District Attorney) in the state of Rio Grande do Sul violated
constitutional protection of equal treatment and prohibition of employment
discrimination. Consequently, the Court examined and rejected the states stated
rationale, its interest in the longevity of a district attorney,
12
and reiterated that a
permissible age requirement needs to be indispensable in the exercise of certain

10
See Luis Roberto Barroso, Razoabilidade e isonomia no Direito Brasileiro in Viana, etc
(2000, p. 31) .
11
Recurso Especial N. 8.983-0 Amazonas. Superior Tribunal de Justica. 6/8/94. (Website:
http://www.stj.gov.br/webstj/default.htm).
12
Voto de Senhor Ministro Antonio de Padua Ribeiro, Relator, p 0038. The court cited other
cases, including Recurso em Mandado de Seguranca No. 697- RJ, Superior Tribunal de Justica
(90115345, 4/2/91, Diario da Justica, 18/3/91) and Recurso em Mandado de Seguranca No.
709 - RJ, Superior Tribunal de Justica (900011949-9, 28/8/91, Diario da Justica, 23/9/91) and 3
other cases. See Arguio de Inconstitutionalidade no Recurso em Mandado de Seguranca
No. 1.178-0-RS (91.0014501-7). Superior Tribunal da Justica. Diario de Justica. 10 Out. 1994.
p. 0042-0044.

7
functions.
13
Thus, the Court upheld functional rationality for the position over the
claimed strategic interests of a state agency.
Brazilian Courts have carefully scrutinized employer rationales for allegations of
employment discrimination based upon height, which is not a constitutionally protected
ground. The height discrimination cases were advanced by women seeking positions in
the police. Women have been accepted into the police on differentiated grounds: the
minimum required height for women is lower than the male standard.
14
In these cases,
women challenged the boundaries of the gendered-norms. The careful court scrutiny of
height in these cases demonstrates the acceptability of gendered norms for these
occupations.
In evaluating these challenges to the height requirment, the Supreme Court
(STF) applied a standard of potential physical danger and intimidation. The STF upheld
a height requirement (5' 3") for female line staff who face circumstances that require
commanding respect from citizens.
15
However, the STF held that a candidate for a
female desk job does not need to be intimidating and therefore rejected the height
criterion for those jobs.
16
The Court heard a third case that required a determination
whether to view a Delegado (police chief) as a desk official or as the commander of all
police, including line officers. After posing that question, the court seemed disposed to
the latter: viewing a Delegado as the commander of line officers and therefore
upholding the height standard. However, the STF majority reasoned that the Delegado
functions primarily within the police and does not need to intimidate others. Further, the
STF reasoned that the increasing democratization of Brazil requires a strict approach
toward discriminatory factors not absolutely necessary, a high justificatory standard.
17

Thus, the Court shifted the burden of proof to examine specific employer
rationales rather than simply asserting a criterion as a fact of nature. The
commanding respect standard is not persuasively linked to the gendered height
requirement since women presumably need as much height as men to command
respect. Thus, the Court upheld gendered norms for specific social spaces over the
tremendous Brazilian concern about controlling violence. (Caldeira, 2000)
Unlike their handling of age and height, courts did not consistently shift the
burden of proof nor justify their decisions not to shift the burden of proof in examining

13
Ibid, p. 0039.
14
In the US, the general requirement is that weight be proportionate to height, as an indicator of
physical fitness, without specific height requirements. Police candidates must also demonstrate
physical fitness through their athletic performance, evaluated according to gender and age
norms. See for example, police standards in the state of Illinois. (Web-site: http://www.ci.rolling-
meadows.il.us/rmpd/power_test.htm.)
15
Recurso Extraordinario RE-148.095-5, Marco Aurelio, Supremo Tribunal Federal (STF)
February 3, 1998.
16
Recurso Extraordinario RE-150.455-2, Marco Aurelio, Mato Grosso do Sul, Supremo Tribunal
Federal (STF), December 15, 1998.
17
Recurso Extraordinario RE-140889, Marco Aurelio, Mato Grosso do Sul, Supremo Tribunal
Federal (STF), December 15, 2000. A dissenting judge conceded that height was not needed
for a desk job but argued that a Delegado does not simply function behind a desk, evidenced by
the assassination of many Delegados. See Mauricio Correas opinion, p. 780.

8
employer rationales for allegations of gender discrimination. In these cases, women
challenged previously closed social spaces, often higher status occupations.
Courts repeatedly upheld the existence of separate occupational lists by gender
without scrutinizing the rationales for the particular occupation.
18
The state of Rio de
Janeiro denied a female from taking a public service examination based upon a 1968
state law that had designated dentists, veterinarians, and pharmacists as female
positions and left the balance of medical positions in the military for men. The litigant, a
female applicant, had sought a male position on the broader listing. In its ruling, the
Superior Court (STJ) upheld the existence of separate lists as reasonable without
scrutinizing the rationale for the separate listings.
19
In another case, the State Appeal
Court in Mato Grosso do Sul had upheld a female candidates petition to take the male
entrance examination to the military police, which the State appealed. The STJ upheld
the separate lists, asserting that certain military activities are appropriate only for men
without specifying which activities. The Court did not examine the states method to
determine the gendered appropriateness of activities nor the particular activities in
question, naturalizing the separation of the sexes in the military.
20

In the few instances when a Court justified its decision not to scrutinize the
rationale for alleged gender discrimination, its arguments did not seem constitutionally
grounded. The STJ passed over its top applicant, a female, to join it as a judge. The
STJ asserted to have simply used its prerogative an an employer and therefore did not
need to consider the possibility that this was discriminatory.
21
This holding was neither
self-evident nor constitutional since an employers prerogative is bounded by the
Constitution.
22
The STJ protected the gendered hierarchy within the Brazilian judiciary.
In the following unusual case, a Brazilian court used burden-shifting to analyze
employer rationale in an allegation of a racial discriminatory firing. A Black public
utililty worker with 17 years of service had been dismissed as part of a plant-wide layoff
in March, 1992. The firm claimed to have sought to retain the maximum technical
capacity in devising its dismissal list which a criminal court accepted because the list
included Whites.
23
However, three witnesses had overheard the plaintiffs supervisor
state, Lets clean the department and fire that crioulo.
24
Upon appeal, a Labor Court
ruled that the worker possessed seniority and, therefore, Constitutional protection from
an unjustified dismissal.
25
Further, the Court held that all firms, even those undergoing
economic difficulties, were subject to the Constitution and, therefore, scrutinized the
firms dismissal process for an allegedly unjustified dismissal. The dismissal process

18
Lima de Carvalho, (1998, p. 5).
19
Recurso Extraordinario N. 912953 in Lima de Carvalho (1998).
20
Recurso Especial No. 173.312 - Mato Grosso do Sul,, Superior Tribunal de Justica,
November 23, 1998.
21
MS 0270, cited by Lima de Carvalho (1998).
22
Processo. n. 0412/92, Poder Judiciario, Justica do Trabalho, 12
th
Region, Jan 16, 1995.
23
Inquerito Policial n. 596/92; 3
r d
Vara Criminal, Estado de Santa Catarina.
24
The use of the verb limpar, to clean, and another verb also used, clarear, to lighten, are highly
evocative expressions to clean out the undesirable, other that cannot be assimilated.
25
Chapter VII, section 1, article 37 of the Constitution in Dolinger (1992).

9
did not stand up to scrutiny. Without evidence of the technical criteria, evaluations of
worker technical capacities, and a method to indicate the relative assessments of
employees, the judge concluded that the firms dismissal process was discretionary with
likely racial motivation.
26

In a few allegations of racial discrimination against Black consumers, Brazilian
courts also used burden-shifting and examined defendant rationale. In one case, two
defendants had prevented three Black customers from entering a social club for
allegedly not being club members in the state of Rio Grande do Sul in 1990. The Court
noted that the club maintained one entrance line for members and another for the
public, and that the plaintiffs, unlike other non-members, had been unable to purchase
tickets on the public line. Thus, the court concluded that the plaintiffs were were
subjected to requirements not given to other persons and treated discriminatorily.
27
In
another case, a Black bank customer had sought to transfer a modest sum from his to
his wifes account. The teller examined his identification with the help of numerous
other employees while detaining the customer. The court found the lengthy
examination to be unnecessary and performed without explanation by comparison to a
hypothetical, similarly situated White customer: If a well-dressed white person
presented a document, . . . would the police have been called without explication to the
individual? Certainly not.
28
Arguing that no plausible explanation existed for this
treatment other than discriminatory motive, the court advocated a jurisprudence that
removed Brazilian societal practice from its appearance
29
to be able to adequately
analyze racist practices that are often camouflaged by enumerable subtleties.
30

Brazilian judges did not routinely shift the burden of proof to analyze employer
rationale in these employment discrimination cases. I argue that judicial burden-shifiting
reflected a judges view of prevailing social practice rather than the strength of an
allegation. Judges did not scrutinize gender within certain occupations but did
scrutinize height which had already become gendered within the police. Judges
routinally scrutinized allegations of age discrimination, which do not challenge a
protected hierarchy. I argue that the legal instrument and judicial ideology explains the
unusual use of burden-shifting in the several racial discrimination cases. Unlike the
other employment discrimination cases, these cases did not challenge hiring criteria,
which are the most difficult cases to litigate in the US (Turner, 1995) and in Brazil.
(Racusen, 2002) These allegations of racially discriminatory firing and consumption
represent less of a challenge to the Brazilian hierarchy. I argue that these judges
applied burden-shifting because the cases were based upon consumer law or the
constitution, which often require burden-shifting, or because their racial ideology

26
Processo. n. 0412/92, Poder Judiciario, Justica do Trablaho, 12
th
Region, Jan 16, 1995.
27
Apelao Criminal n. 294.084.561. 4
th
Camara Criminal do Tribunal de Alcada, Rio Grande
do Sul. Revista dos Tribunais. Ano 715. May 1995, p 518-20.
28
Ao Ordinaria N. 96.0002030-2 and 960002364-6. 19
th
Vara Justica Federal. Comarca de
Porto Alegre. http://www.ajuris.org/br/sent9.html. Web-site of Ajuris Jurisprudencia. Consulted
May 10, 1997, p 28.
29
Ibid, p 10.
30
Ibid. p 9.

10
diverged from racial democracy. In the vast majority of racial discrimination cases,
Brazilian judges do not shift the burden of proof to scrutinize defendant rationale but
evaluate allegations under the theory of overt discrimination, examined in the next
section.

Overt Discrimination
The theory of overt discrimination addresses the most pronounced discriminatory
acts, such as an employer who tells a Black applicant, I will not hire you because you
are Black. In the US, such acts are litigated under the theory of disparate treatment
with direct evidence of discriminatory motive. In the US but not Brazil, the verbal
expression of prejudice triggers court scrutiny of a defendant rationale. For a variety of
reasons that I will explore, the Brazilian theory of overt discrimination requires much
higher evidentiary standards.
To assess potential discriminatory motive, the central question for these cases,
US Cour ts evaluate the commentary and the relationship between the commentary and
the discriminatory action. US judges may view prejudicial commentary as causal based
upon a showing of temporal or logical causality. A court held that a statement by an
employer, women are not good sailors, shortly before a woman was denied a position,
inferred temporal causality. (Grant v. Hazelett Strip-Casting Corp, 880 F. 2
nd
1564 1989)
Judges may also infer prejudicial intent based upon logical causality from prejudicial
remarks by a defendant. (EEOC v Alton Packaging Corp, 901 F.2d 920 1990; Slack v
Havens, 522 F. 2
nd
1091, 1975) The expression of prejudice may also trigger the
scrutiny of defendant conduct. Judicial analysis under the theory of overt discrimination
then reflects the logic of comparing the treatment of plaintiffs to comparable others.
(Slack v Havens, 522 F. 2
nd
1091, 1975)
Most Brazilian judges require that a viable allegation of racial discrimination
include direct evidence of three prongs: (1) the discriminatory act, (2) the defendants
prejudice toward the complainant, and (3) the causal relationship between the prejudice
and the act. Judges require direct evidence of causality rather than inferring causality
from timing or logic, a very high evidentiary standard. Under this burden, a plaintiff must
show that a defendant revealed this causality - that his action to have been motivated
by the prejudicial attitude, that I will not hire you because you are Black.
31
In
response, a defendant does not need to justify an action but simply rebut any of the
prongs: to not hold prejudicial views toward the defendant or that those views did not
constitute motivation. Thus, the direct expression of prejudice does not necessarily

31
A Brazilian judge ruled that prejudicial commentary did not constitute racism because it could
have been directed at a White woman: To offend an Afro Brazilian with the words and
expressions mentioned would not really be racism, because Whites or yellows could also be
called prostitutes, . . . vagabonds, monkey-like. (Processo Criminal N. 256/93. 8
th
Vara
Criminal. So Paulo. Poder Judiciario.) According to Brazilian jurisprudence, the magnitude of
dishonor is expressed by the distance between real and impugned social status: Among
persons who normally treat each other in a low fashion, offensive words lose their meaning.
See Barbosa, 1995, p 44. Thus, an upperclass White woman would be more dishonored by
this commentary than a lowerclass Black woman. .

11
trigger scrutiny.
Only in one allegation of employment discrimination on the grounds of race did a
Brazilian Court infer motive from prejudicial commentary.
32
In that instance, a teacher
with the national training service had unsuccessfully sought moral damages (for pain
and suffering) for racial discrimination after his supervisor publicly insulted him,
reassigned him to a lower-paying department, and harassed him for filing the complaint.
The trial court judge found the animosity to be eminently personal and rooted in the
supervisors abominable personality and therefore neither a consequence of prejudice
nor the responsibility of the firm.
33
Although the Superior Labor Tribunal (TST)
acknowledged in its appeal that it could not hold an employer responsible for personal
problems rooted in the human nature of its employees, the court ruled that numerous
documented acts demonstrated the role of supervisors prejudicial motive in the
teachers reassignment and dismissal.
34
Thus, this holding, based upon the
constitutional prohibition of discrimination and not the anti-discrimination law, inferred
motive which departed from the usual application of the theory of overt discrimination
The criminalization of racial discrimination in Brazil has strongly influenced the
development of the theory of racial discrimination. Since racism is a crime, Brazilians
bring their allegations to the police, often without legal counsel, which informs the
framing and disposition of complaints. To the degree that case-law reinscribes a theory
of discrimination, the development of the theory depends upon the supply of cases.
Brazilian police have narrowly applied the law
35
and have not investigated an allegation
aggressively until prosecutors formally charge a defendant. The receiving agency plays
a central role in the application of anti -discrimination law. (Forbes and Mead, 1992;
Cottrol and Hernandez, 2001)
Second, the criminalization of racial discrimination in Brazil limits the charge that
can be issued and evidence admissible under the charge, compared to a civil allegation
in Brazil or the US. Consequently, police investigators only sought evidence admissible
under the prosecutors charge: direct evidence of intent and causality to commit an act
of prejudice. Further, the criminal standard of evidence beyond a reasonable doubt, is
much higher than the civil standard of more likely than not, particular for a non-bailable
felony. Finally, the considerable weight of intent in evaluating a felony allegation

32
See Embargos Declaratrios em Recurso de Revista n. TST-ED-RR-381.531/97.8, Vicente
Batista de Souza v. SENAI, Servico Nacional de Aprendizagem Industria, Tribunal Superior de
Trabalho, 1st Turma (December, 2001). The TST web-site: http://www.tst.gov.br/ Downloaded:
February 20, 2002.
33
Recurso Ordinario 16,860/96, 3rd Turma, Tribunal Regional do Trabalho da 3rd Regio.
EMAIL Correspondence of Isabela Figueiredo, Director of Documentation, Legislation and
Jurisprudence of the TRT of the 3
rd
Region, Minas Gerais. August 8, 1999.
34
Embargos Declaratrios em Recurso de Revista n. TST-ED-RR-381.531/97.8, Vicente Batista
de Souza v. SENAI, Servico Nacional de Aprendizagem Industria, Tribunal Superior de
Trabalho- Decided: December 12, 2001. 1st Turma. Downloaded from the TST web-site:
http://www.tst.gov.br/ February 20, 2002.
35
See Guimaraes, 1998. The Brazilian police have not offered complainants services
equivalent to those provided by the specialized police units addressing crimes against women in
Brazil.

12
increases the judicial focus upon the aggressors point of view. (Freeman, 1989;
Fitzpatrick, 1987)
Although a criminal measure seems to communicate a more serious
condemnation by the state, a civil instrument provides easier evidentiary standards and
broader theories of discrimination. (Gitter, 1994) As mentioned above, Brazilian judges
use a burden-shifting evidentiary framework for civil allegations of discrimination that
lessens the imbalance in power and access to information between the parties.
36

Brazils Consumer
37
and Labor Codes
38
obligate judges to use burden-shifting for
certain allegations. Judges may also invoke burden-shifting for allegations of rape,
corruption of minors, and other problems with complex evidence.
39
Although nothing
would have prevented Brazilian judges from using burden-shifting to settle racial
discrimination cases, most judges did not use burden-shifting in their analysis of racial
discrimination allegations. (Racusen, 2002) Judges have even required direct evidence
of prejudice for cases brought under legal instruments that do not require such a
showing. (Racusen, 2002) Thus, the anti-discrimination law has directly influenced
cases under it and indirectly influenced cases under other laws by shaping the legal
theory of racial discrimination.
Finally, Brazil, as much of Latin America and Europe, uses the civil law system
while the US uses the common law system. In general, the civil law system relies more
upon law while the common law system relies more on precedents. Although both
systems have comparative strengths and weakness, the problem of the relative fixity of
the law in comparison to changing social practice looms larger under the civil law
system. The legislative role to specify all crimes and the judicial role to apply but not
interpret the law (Merryman, 1994) can produce highly enumerated law, formalist
judicial holdings, and reified loopholes for defendants. Thus, in ruling that a lack of
service to a Black customer did not constitute discrimination, judges have formally
applied a law which prohibits the explicit denial of access or service.
40
The legal theory
of racial discrimination has developed narrowly compared to other possible theories of
discrimination. The theory of covert discrimination, while also limited, provides more
evidentiary options for a complainant. The next section examines the role of the
ideology of the nation in the development of the Brazilian theory of racial discrimination.


36
The Brazilian doctrine of burden-shifting recognizes the inequality of parties in access to
information and enables burden-shifting to strengthen fact-finding and to avoid placing too
onerous a burden on plaintiffs. See Castilho Pereira, 2001.
37
The Brazilian consumer code employs the broadest of the Brazilian burden-shifting
frameworks. See Bittar, 1996.
38
Labor judges are empowered to use burden-shifting as necessary. They are obligated to use
a burden-shifting framework to examine an allegation of unjustified dismissal because of the
presumption of the continuity of the employment contract. See Castilho Pereira, op. cit.
39
See Mirabete (2000, p. 292).
40
See the case of Ms. Pires da Silva discussed below. Proc. Criminal N. 688/94. 7
a
Vara
Criminal, Forum Central. So Paulo.

13
The Ideology of the Nation and the Development of the Brazilian Legal Theory of
Racial Discrimination
For the past half-century, Brazilian anti-discrimination law has had an intimate
relationship with the ideology of the Brazilian nation. According to that ideology,
Brazilians have been specially formed by the bonding of bodies, families, and cultures
into a new Brazilian nation. This ideology assumed mythical proportions through the
seminal work of Gilberto Freyre, who claimed that this national development would
secure a harmonious future for Brazil and Brazils place among other nations. Freyre
advanced three basic tenets. First, he inverted the racist pessimism about degenerate
Mulatos into the counter claim that the rise of the Moreno
41
represented racial
progress that would resolve racial problems. (Hernandez, 2002) Thus, he claimed
that racial mixing would inherently produce social harmony and compared this
Brazilian model to the US model, which generated two other claims. Second, Freyre
defined racism as US phenomena (Twine, 1998; Eccles, 1985) such as segregation
(Guimaraes, 1999), lynching, and the resultant tension between groups. That notion of
racial discrimination enabled the denial of Brazilian racial discrimination. Finally, Freyre
argued that the absence of the North American phenomena, visible tensions and explicit
state organized discrimination, indicated the lack of a Brazilian problem.
Freyres claims animated Brazilian nationalism during the important state-building
of the 1930s and beyond. His doctrine was expressed in state policy (Mitchell, 1983;
Skidmore, 1974; Nobles, 2000; Raphael, 1981) and official pronouncements. (Raphael,
1981; Levine, 1998) School children learned that race does not matter and that racism
is a taboo subject. (Twine, 1998; Hernandez, 2002; Hasenbalg, 1979) Officials used
the doctrine as conflict avoidance and denounced challenges to racial incidents and
other expressions of Black protest as racist and unBrazilian. (Hernandez, 2002;
Hanchard, 1994) Freyres doctrine was self-perpetuating because it discouraged
phenomena inconsistent with the theory. Thus, officials interpreted the lack of racial
discrimination complaints as evidence of the lack of a problem.
Certainly, Freyres doctrine contained some truth in the claim that Brazil was
harmonious compared to the US. (Hasenbalg, 1979) A Ku Klux Klan did not develop in
Brazil. Instead, high rates of inter-marriage and other forms of social mixing have
been highly visible. Freyres theory of racial democracy, like other mythology, blurred
the meaning of, and causal relations between, the variables. First, affection does not
demonstrate nor generate equality. (Eccles, 1985) Second, the public discourse of
harmony opposes private discourses that disparage Brazilian Blacks. (Twine, 1998)
Third, the historic lack of racial discrimination complaints did demonstrate the absence
of Brazilian discrimination but the difficulty of articulating racially discriminatory
experiences anywhere, (Bumiller, 1988) the difficulties of bringing any problem to the
law in Brazil (Carvalho, et al, 1998), and the special problems posed by the
stigmatization of Blackness in Brazil. (Wade, 1997)

41
Brazilian color terminology is complex. Moreno, the most popular term for Brown, also
connotes Brazilianness, which emphasizes the nation over a color category and represents an
anti-category category. In contrast, Mulato connotes the biological cross between persons of
White European and Black African descent.

14
The ideology of racial democracy promoted an understanding of racial
discrimination that infuses anti-discrimination law and has been reproduced through the
law. In 1951, the Brazilian Congress defined racial discrimination in the original anti-
discrimination law as phenomena occurring outside of Brazil. The law defined racial
discrimination as an act of racial prejudice and enumerated a series of illegal acts,
such as blocking the entrance to a facility or refusing to serve a customer. Those social
practices were not perceived as Brazilian but North American. Thus, the laws theory of
racial discrimination fully coincided with the ideology of the nation that declared racial
discrimination as a North American problem.
The sponsors of the 1951 law saw racial discrimination as phenomena owing to
foreign influence. The law was drafted in response to a complaint filed by a North
American Afro-American celebrity, Katharine Dunham. Gilberto Freyre, then a Senator,
viewed the Dunham incident as exceptional phenomena that demonstrated foreign
cultural influences on Brazil, as he suggested to the Congress:

It is not surprising that this [the Dunham incident] occurred in So Paulo:
because in So Paulo commercialism, mercantilism, business, the dollar,
["dollarism"], immediacy, all the 'isms' which are inseparable from the
vigorous and triumphant civilization in industrial America operate in So
Paulo with a vengeance.
42


Freyres speech conveyed little concern for the problems facing the Brazilian Black. To
Freyre, racism, defined as exclusionary incidents, was fundamentally unBrazilian and
consequential to the North American cultural influences of industrial capitalism. The
laws sponsor, Senator Arinos, declared that, the agents of [racial] injustice are almost
always gringos who are ignorant of our traditions and insensitive to our old customs of
racial fraternity.
43
The guilty party was neither Brazilian nor cognizant of Brazilian
social practices.
44
Thus, the Congress passed the 1951 law after a North American
complaint about phenomena attributed to North American actors and societal
influences.
With very different ideological motivations than Brazilian elites, several
generations of Black activists have also defined racial discrimination as an act of
prejudice and a crime against the nation.
45
However, punishing prejudice is an
ellusive project (Lamounier, 1968; Fernandes, 1969; Bertulio, 1989) especially in a
country that has the prejudice of not being prejudiced. (Fernandes, 1969) The
construction of racial discrimination as a crime against the nation sought to use the
ideology of the nation to elevate the criminal classification of racial discrimination.
However, that understanding emphasizes the symbolic over the concrete elements of

42
See Freyres speech to the House of Deputies, July 17, 1950, entitled Against Prejudice of
Race in Brazil, in Freyre, 1966, p 191.
43
For Arinoss discussion of gringos, see Andrews (1991, p. 184).
44
Andrews, (1991, p. 184)
45
For the first elaboration of that idea, see the Conveno Nacional do Negro Brasileiro, Letter
to the Brazilian Nation, November 11, 1945 in Nascimento (1982, pp 111-113).

15
an allegation.
46

Three decades later, Black activists advocated upgrading racial discrimination to
a felony because it constituted a crime against the nation. (Prudente, 1989) According
to an influential group of activists in Sao Paulo, the law minimized the problem of racial
discrimination and provided an insufficient deterrent to potential aggressors:

If the law defines the physical elimination of persons as a punishable
crime, discrimination of color, race or ethnicity through an act that also
morally destroys the human being, wounding his dignity, must
unquestionably be defined as a crime and not a mere misdemeanor.
47


These activists argued that racial prejudice endangered the peaceful existence of
many races, which was indispensable in Brazil, and, therefore, warranted the status of
felony.
48
They used the discourse of the nation to insist that racial discrimination had
serious societal consequences beyond a common misdemeanor.
Black activists succeeded in upgrading the criminal classification of racial
discrimination in Brazils new Constitution of 1987. The new Constitution made the
welfare of all, free from racial prejudice one of the fundamental principles of the republic
and discussed racism, racial discrimination and unequal treatment by reason of color in
ten clauses,
49
which contained multiple notions of discrimination.
In the following year, the Congress passed a new anti-discrimination law that
implemented the Constitutional provision punishing racism. Senator Carlos Alberto Ca
(PDT), the primary sponsor of that law, argued that racism brings about the equivalent
of a civil death and, therefore, had to be treated as a crime.
50
To Ca, treating racial
discrimination as a misdemeanor communicated state tolerance.
51
His supporters in the
Senate emphasized the importance of the law to communicate state intentions.
52

The law continued to treat racial discrimination within the causal, criminal model
that promised to punish those crimes resulting from prejudice of race or color." The
classification of racial discrimination as a non-bailable felony increased the potential
penalties and heightened the evidentiary requirements. In addition to the practices
outlawed in the 1951 law, the new law prohibited the denial of access to public

46
Had it passed, a plaintiff would have assumed the added burden of demonstrating an offense
to the nation rather than the denial of personal liberty.
47
do Nascimento, 1983, p. 91.
48
Prudente, p245-6.
49
See Mitchell (2000, p. 7).
50
Cas speech to the Congress was quoted in Da Silva (1994, p. 134),
51
This line of rationale is summarized from a speech Ca gave on the floor of the Senate, May
11, 1988, the 100th anniversary of the abolition of slavery, and a lengthy interview given in a
Black Movement newspaper. For the former, see, Diario do Congresso Nacional II, May 11,
1988, published June 15, 1988, p.2208-9. For the latter, see Paquim, March 10-16, 1988, Year
19: N 972.
52
See the speeches of Senators Amaury Muller (PDT) and Mauricio Correa (PDT) in Diario do
Congresso Nacional II, published September 16, 1988, p. 3175. and November 24, 1988, p.
3480, respectively.

16
transportation, public buildings and elevators.
53

The strongest and most unusual new clause in the 1989 law was its protection of
the right to enjoy ones family life and marital choice. Article 14 protects ones familial
well-being and maritial choice. By contrast, the clauses on employment discriminaton
protected hiring and firing and do not provide equivalent coverage for occupational
choice and working conditions.
54
Thus, the law simultaneously entered the realm of the
nation and personal intimacy. In this deepening of the law, the Brazilian Congress
reaffirmed the centrality of racial democracy in Brazilian life and its central claim that
Brazilians can mingle and marry whomever they wish. That claim animates racial
democracys claims about Brazilian distinctiveness and Brazilian harmony.
In the Senate, this clause about familial well-being and marital choice generated
the greatest controversy of any clause.
55
Senators sought to balance their concerns
about the right of Brazilians to interact and marry freely, the role of the mother-i n-law in
insuring marital choice, and the importance of the Brazilian nation. Senator Mauricio
Correa (PDT) advocated punishing: "any interference or refusal of any party of any
Brazilian or person coming to Brazil helping to construct the grandness of this land."
56

Thus, he ultimately upheld the fiction of the nation over the individual rights of the
mother-i n-law. Senators did not display the same level of concern about the potential
interference with the free choice of other actors, such as employers, in debating other
articles. Thus, Senators recognized the intrusiveness of this clause, which increases
the significance of their reaffirmation of the primacy of the nation.
During the next decade, the Black Movement secured three amendments to the
anti-discrimination law of 1989. Of the several amendments, the 1997 amendment,

53
See Public Law 7,716/1989 in Silva (1998, p. 52).
54
My reading of court cases suggests that the same expanded approach to the protection of
marriage also existed in court. In two of the few cases, judges evaluated the defendants
behavior very broadly. In one case, a mother allegedly influenced her son to break up with his
Black girlfriend. The court extended article 14 protection broadly to include premarital romance.
Not surprisingly, it was difficult to prove what or when exactly the mother-in-law had spoken,
and the first instance judge absolved her because of insufficient evidence. (Proc. Criminal n.
321/95, 15
th
Vara Criminal. So Paulo. P. 38.) A district attorney successfully reopened the
case, arguing that even if an exact date could not be identified, there was no question about
what had been accomplished. (Recurso en Sentido Estrito n. 194.509-3. SP, 1996. AJURIS
Website: of the Associao dos Juizes do Rio Grande so Sul. http://www.ajuris.org.br/.
Consulted: December 15 1999.)
In another case, a defendant insulted his nephew and girlfriend, calling her Negra, disgraceful
Preta . . . and was convicted by the trial court. The Appeal Court held that his conduct did not
have to result in a break-up to have constituted interference with his nephews choice of spouse
and upheld the conviction. (Apelao Criminal N. 198.858-3/2. Tribunal de Justica do Estado
de So Paulo.) Judges required much less direct evidence in these cases than in most cases. I
argue that these are the only anti-discrimination cases in which the prestige of the nation is on
the side of the plaintiff. See Racusen, 2002.
55
See Senator Nelson Carneiro (PMDB) Diario do Congresso Nacional II, (November 24 1988,
p.3480).
56
Diario do Congresso Nacional II (November 24, 1988, p.3481).

17
sponsored by Federal Deputy Paul Paim (PT), was the most significant. That
amendment sought to close the injria loophole in the law. Since 1989, police have
classified most racial discrimination allegations as injria, an injury to one's honor, and a
much lesser crime than racism.
57
Officials tended to view injria as a personal problem
and were much less likely to process such an allegation. (Guimaraes, 1998; Racusen,
2002) Police designation of the majority of racial discrimination allegations as injria
was contrary to the sponors intent for the law.
In classifying most allegations as injria, police focused upon verbal prejudice
and downplayed the nonverbal aspect of the incident. Most allegations contained
verbal prejudice and passed this bar for condemnable verbal behavior. However, police
analyzed nonverbal conduct narrowly and read the relevant clauses literally. Police
routinely classified racist commentary uttered outside of specifically delineated sites and
social practices as injria.
Even article 14, the clause about familial well-being and potentially the deepest
and broadest clause that might have been applied to some problems classified as
injria, was applied narrowly. A racial insult generally viewed as injria could generate
a claim under artlcle 14 if a defendant interfered with fami lial well-being. In a highly
publicized case, Celso Limongi, a noted jurist,
58
declared that article 14 does not pertain
pertain to insults in the street.
59
That opinion, which carefully dissected the grammar
of article 14, was not required by the law which does not specify a location for familial
interference. Limongis decision effectively exempted private activity from the scope of
the law, even though article 14 seemed to address intimate relations.
Most officials drew upon the ideology of racial democracy in classifying,
investigating and adjudicating the claims. That ideology does not contend that Blacks
and Browns are equal to Whites but that color does not matter in life outcomes.
Most officials did not view Black plaintiffs as deservi ng equal treatment, but contended
that color had not affected their mistreatment, which they located in the social standing
of complainants. Upholding racial democracys claim that color does not matter,
officials treated most disputes as conflicts between colorless individuals.
Deputy Paims 1997 amendment placed racial insults within Brazils penal code
with stiffened punishments. That designation represented a significant advance by
naming a problem that police had previously dismissed. After 1997, allegations of
injria yielded more convictions than the original articles of the 1989 law.
60


57
See Racusen, "Reclamando Cidadania No Mercado de Trabalho em So Paulo," in Munanga
(1996) and Guimaraes (1998). See also the Research Report of Center for Workplace
Relations (CEERT) in "Racismo Acontece Mais No Trabalho". Folha de So Paulo. Sept. 3,
1997.
58
Limongi is a leading member of Juizes Para Democracia, a progressive association of
Brazilian judges.
59
Apelao Criminal N. 133.180-3/7. Tribunal de Justica do Estado de So Paulo.
60
For the period from 1989-2001, I located 37 convictions of racial discrimination out of a total
of 61 cases. (The actual rate of plaintiff victory is much lower than those figures imply.) Of the
37 convictions, 6 were based upon the articles of the 1989 anti-discrimination law, 9 upon the
penal codes protection against for racial injria, 17 for pain and suffering under the consumer or
labor code, and 3 under the constitution. See Racusen, 2002.

18
Deputy Paim (PT) proposed an ambitious new anti-discrimination law, the Statute
of Racial Equality, to the Congress in June 2000. While pending review in a special
commission, several of the bills more controversial clauses, including the provision of
affirmative action in higher education and public ministries, have been adopted by
executive decree and separate legislative action.
61
The bill defends those who suffer
prejudice or discrimination because of ethnicity, race or color. Although that language
only prohibits direct discrimination, the formulation makes Blacks and Browns the
subjects rather than the objects of policy.
62
This proposal vastly expands the scope of
the 1989 anti-discrimination law and treats racial discrimination as a problem in equality
rather than a problem in prejudicial attitude. The proposal focuses on the creation of
new opportunities, which implicitly recognizes that discrimination is a problem in
equality. However, the proposal does not modify the theory of racial discrimination as
an act of prejudice and its strengthened workplace protections refer to the 1989 law
rather than the constitution. By deferring to the 1989 law to govern workplace
discrimination, the proposal does not modify the theory of racial discrimination in the law
nor provide a stronger basis for future litigation.
Thus, the Black Movement continues to define racial discrimination as an act of
racial prejudice in its legal projects. The 1989 law represented symbolic politics, (da
Silva, 1994) in which Black activists used the available political language
63
to call
attention to a problem. In 1989, Black activists were less concerned with the theory of
racial discrimination in the law and more concerned securing the states condemnation
of racial discrimination. I argue that social movements, like all political actors and
perhaps more than other political actors, have an interest in symbolic politics that can
yield policy outcomes with unforeseen consequences. However, a social movements
reliance upon symbolic politics does not explain the content of the symbolism.
I suggest that the content of the 1989 law and its amendments cannot be
explained without reference to the ideology of racial democracy, the ideology of the
Brazilian nation, that gives meaning to the criminalization of racial discrimination and the
view of racial discrimination as North American phenomena. The Constitution
contained a broader theory of employment discrimination that could have become the
basis for the 1989 anti-discrimination law and its numerous amendments. I suggest that
the notion of a policy framework (Bleich, 1998) helps explain why the Black movement
used the existing theory of racial discrimination in the 1989 law and its amendments. A
framework is a set of cognitive and moral beliefs that guide a policy terrain. (Bleich,
1998) Political actors who disagree still operate within that terrain that defines the
common language and approach to a set of issues.
Since its inception, Brazilian anti-discrimination law has had a very close

61
The Statute of Racial Equality. Projeto De Lei N11 3198, DE 2000 (Do Senhor Paulo Paim -
PT). Representative Paims Web-site. http://www.camara.gov.br/paulopaim/031982000.htm.
See Solano Nascimento and Beatriz Velloso, Epoca, A semana, 12/16/2001
62
See Title I, article 6. Ibid. By contrast, the 1989 law punished acts of prejudice which
implicitly focuses on the aggressor. (Freeman, 1989; Fitzpatrick, 1987)
63
See the comparison of the framing of sexual harassment in France and the US in Saguy
(2000).

19
relationship to the discourse of the Brazilian nation, which triumphed the continued
absence of racial discrimination claims and convictions. The legal theory of racial
discrimination as overt acts displaces discriminatory practices and principals from the
Brazilian nation. Under that theory of discrimination as foreign phenomena, a Brazilian
can most viably allege discrimination against a foreigner. Consequently, most
defendants who can claim their conduct or character to be unmistakably Brazilian have
been able to effectively refute charges by presenting themselves as inherently
unprejudiced. The laws theory of discrimination gives defendants the possibility of a
Brazilian defense by defining racial discrimination as North American phenomena.
By placing litigants outside the nation, the theory of racial discrimination also
creates problems in standing and credibility for litigants. How can officials who share
the ideological view of a harmonious Brazil view litigants? Indeed, officials often
characterize litigants as humorless and unBrazilian, whose allegations increase racial
tension. Further, the anti-discrimination law does not permit group claims,
64
and judges
have required exceptionally high standards of group coherence to show standing and to
demonstrate harm. Judges have evaluated the question of standing, whether a litigant
represents other Black Brazilians, through the ideology of the nation. How many Black
or Brown Brazilians must support an allegation for a judge to grant standing to a
plaintiff or issue a finding of harm to the Black community? What are the implications of
creating an empirical requirement for standing and harm? I explore the application of
the legal theory of racial discrimination to several cases in the next section.

Applying the Theory of Racial Discrimination under the Influence of the
Nation
The interpenetration of the ideology of the nation and the Brazilian theory of
racial discrimination are highly evident in the judicial treatment of problems and
principals. A defendant might refute an allegation of racial discrimination by asserting
his fundamental Braziliannness, such as a claim to be a Mulato or to have a Black wife.
According to the ideology of the Brazilian nation, a Mulato, who embodies the mixing,
cannot be prejudiced.
65
Similarly, a defendant might emphasize having a Black spouse
or having treated a plaintiff cordially as evidence of his lack of prejudice. These
assertions of Brazilianness place the defendant within the nation. Most but not all
judges have accepted these Brazilian defenses. Judicial evaluation of the relevance
of this defense has often decided the outcome of a case because that defense, if

64
Brazils version of a class action suit, the articulation of collective interests, such as children,
consumers, and the environment, does not explicitly extend to racial discrimination claims. See
Public Law 7.347/1985 in Silva, 1998, p. 44.
65
Of course, no data supports that claim. Surveys have not shown that a Brazilian Brown
(Parda) has less prejudice than a White (Branca). See Turra (1995). Further, in a country in
which Mulato is the least likely term to be used on the street for someone to describe himself as
Brown, the choice of that term in the courtroom requires explanation. I suggest that the reason
the term is used in the courtroom is the same reason the term is generally avoided. Mulato
represents the biological mark of Blackness. The more popular color terms for being "Brown,
Moreno and Pardo, do not carry that same connotation. I suggest that defendants viewed
Mulato identity to represent the most evocative claim of being inherently unprejudiced.

20
accepted, trumps the value of other evidence.
The following three cases, selected from a larger universe of cases,
66
illustrate
the interpenetration of the nation and the legal theory of racial discrimination in judicial
holdings. The first case illustrates the problem in trying an allegation of employment
discrimination under the legal theory of overt discrimination. Vanda, an experienced
Black cashier, inquired about a cashier opening and was told on consecutive days that
four applications had already been received. When Lina, her White neighbor without
experience, inquired that second day, Lina was asked for her documents. The manager
accepted Linas document, Vandas resume with her own photo superimposed, and
gave her the list of entrance requirements to begin work.
67
Thus, the two neighbors had
constructed a test of the treatment of comparable persons.
During the subsequent investigation, the police gathered the facts without
investigating the discretionary nature of the hiring process or the inconsistencies in
defendant testimony. Eduardo, a pharmacy manager, testifed that he had learned the
job had been filled just before Vanda applied and had forgotten to take down the sign.
That does not explain the solicitation of Linas credentials. The firms evidence about
that previously-filled-job referred to an entirely different position filled ten days earlier.
The company also mobilized to declare Eduardos Brazilianness by suppying a
registry of its Black and Brown employees. Two Black defense witnesses testified
that Eduardo had never demonstrated any racist sentiment or behavior against persons
of color. Eduardo emphasized that he treated Vanda cordially and considered himself
Mulato. The judge accepted that defense, declared Eduardo inherently unprejudiced,
and did not analyze the differentiated treatment of the two neighbors.
68

In numerous cases, a judge defended the Brazilianness of a defendant, whose
conduct had been overt, who followed societal norms.
69
In the following case, a judge
viewed a litigant as having been out of her place
70
, and suggested that she

66
I have collected 38 racial discrimination decisions reached between 1989 and 2001; 23
opinions reported by the media, an organization in the Black Movement, or a government
agency; and 54 police investigations.
67
Proc. No. 374/95. 8
th
Vara Criminal da Capital. Poder Judiciario. So Paulo.
68
The judge referred indirectly to the differentiation in suggesting a civil action might proper.
Ibid.
69
Judge Limongi found that Jr. Oliveiras prejudicial commentary on the radio occurred because
he shared deep-seated societal prejudice against the Black . . . even more so because of his
youth. See Apelao Criminal N. 153.122-3/0 (So Carlos), Tribunal de Justica do Estado de
Sao Paulo, February 1995. In issuing his recommendation to close another investigation, the
Public Prosecutor concluded: There was no intent to discriminate because the defendant was
only following the norms of the building. See Departamento de Inquritos Policiais e Policia
Judiciaria (DIPO) Proc. No. 46.069/95. Poder Judicirio de So Paulo
70
Brazilians often speak about place and the place of the Black (lugar de Negro). Invoking
place expresses order and conveys color and class into decorum and standing within a
hierarchical society. (DaMatta 1991) In 19% of the racial discrimination allegations filed in the
city of Sao Paulo with a an identified Brown complainant, the aggressor told the complainant
he or she was out of place: that the lugar de Negro was in the favela, the slave quarters, Africa,
or somewhere else and not here. (Racusen, 2002, p. 217) Dzidzienyo (1971) has described a

21
consequently triggered the defendants overt actions. On a rainy evening in September
1993, a security guard closed followed Dilce Pires da Silva and her daughter for 30
minutes in a supermarket in a middle-class neighborhood of So Paulo. When Ms.
Pires da Silva asked why they were being followed, the guard responded, Blacks only
enter the supermarket to rob. He prevented them from complaining to the
management and hit Ms. Pires da Silva, 67 years-old, in the ensuing scuffle.
71

Anticipating the narrow application of the law, the Public Prosecutor expansively
argued that the security guard had refused their free access to the supermarket. He
claimed that shopping, a right protected by the Constitution, required unrestrained
access to the store and physical and spiritual liberty. The judge did not accept this
argument and applied the law literally. He absolved the guard because he had neither
blocked their physical entrance to the store nor refused to serve them, the relevant
clauses of the anti-discrimination law.
72

In contrast to most judges who dismissed cases with conflicting evidence, the
judge in Ms. Pires da Silvas subsequent civil suit against the store
73
for inflicting pain
and suffering acknowledged the plaintiffs point of view and drew inferences from
omissions and conflicting facts. He reasoned from the victims display of their wallets
that the guard had accused them of being unable to pay, which the guard had not
admitted. The judge viewed the dispute over the guards commentary as a conflict in
the perspectives of the principals rather than a conflict in the facts. He noted that the
incident could have major or minor repercussion depending upon point of view: major to
the offended and minor to the defendant for whom the expression was as a banality
said without premeditated intention to offend. The judge situated Brazilian racism
within that difference in perception, continually expressed in countless daily encounters.
Within his acknowledgement of two points of view, the judge ultimately revealed
his hierarchical assumptions. He noted that the victims had entered the store soaked
from the rain and poorly dressed, and suggested that their entrance attracted the
security guards attention in an upper middle class neighborhood. In the judges view,
the security guard reacted to the victims social class and race: Brazilian racism isnt
ostentatious . . . [but] built into the culture of the people, not as racism, but more as the
social conditions possessed by persons of the color Negra.
74
He viewed the lower
position of darker Brazilians as a social given. Thus, he suggested that the incident
would not have occurred had the plaintiff accepted her place.
75
In assessing the

Brazilian racial etiquette, self-regulating norms that all Brazilians observe, within which
Blacks and Browns know their place, best expressed by the popular saying, In Brazil, there
is no racism because the Black knows his place.
71
Proc. Criminal N. 688/94. 7
a
Vara Criminal, Forum Central. So Paulo.
72
Ibid.
73
This store also produced a listing of its Black workers, two of whom testified to never having
suffered discrimination at the store.
74
Please note that in Brazil Negra is considered a race and that Preta is the color category for
Black used by the census bureau and in subjective identification.
75
Other judges were explicit about this point. In one case, a state appeal court reasoned that
the allegation had advanced because of the animosity of one of the witnesses and the

22
stores liability, the judge found the event to be of minimal repercussion, his
characterization of the defendants perspective, and ordered the store to pay a minimal
fine.
76

In the third case, a powerful defendant as well as trial and appellate judges
invoked the ideology of the nation to rebuke an allegation of racist social
communication. Trial and appeal courts treated the alleged harm as an empirical
question and demanded a high standard of audience coherence to substantiate an
allegation of racist communication. The Office of the Public Prosecutor in So Paulo
had initiated a civil action to challenge an allegedly racist image in a national publicity
campaign of Benetton Textiles. The ad featured two children: a blond, blue-eyed, White
child laughing and hugging a sad, apathetic, Black, child. The Prosecutors Office
received many reports of children troubled by the ad and commissioned an impact study
by a specialized state agency, (PROCON) which reported that a majority (56.4%) of
interviewees perceived the ad as prejudicial against the Black race.
77
Thus, the
Prosecutor argued that the ad violated individual protection from discriminatory publicity
and the public interest articulated in the constitution and in the Consumer Code.
In its response, Benetton Textiles invoked the ideology of the nation in arguing
that the plaintiff did not possess standing to advance the allegation in the name of the
Black community which did not possess collective interests. The Court did not accept
that argument and ruled that the Public Prosecutors Office possessed standing,
enhanced by Geledes
78
participation in the litigation, and that Blacks offended by the ad
were protected as consumers from abusive publicity.
The Court subsequently treated the impact of the communication as an empirical
question that it evaluated through the lens of the nation. Although it found merit in both
parties arguments about the content of the ad, the Court questioned the plaintiffs claim
that the Black child represented a devil in a subordinated position.
79
It argued that
PROCONs study demonstrated a mixed impact and, therefore, encountered the
constitutional protection of liberty of expression, which it asserted to be fundamental
over the principle of equality. That assertion is dubious since the Brazilian Constitution
expressly protects the welfare of all Brazilians in its preamble and the dignity of all
Brazilians and their right not to receive racist communication in other clauses. The
Court treated equality as an empirical right, subordinate to a fundamental right.
Upon appeal, the Court majority upheld the trial courts view of the empirical
evidence. The Public Prosecutors office, joined by Geledes, appealed based upon its
argument that the evidence had not been not adequately considered.
80
The Appeal

defendants foolish behavior: This would not be a case if the defendant had behaved properly.
Apelao Criminal N. 115465-3/6. Tribunal de Justica do Estado de So Paulo.
76
See Proc Civel N. 672/93. 21
st
Vara Civel; Forum Central. So Paulo.
77
Proc. Civel n 1.913/92. 36th Vara Civel. So Paulo. April 1993. p. 9.
78
Geledes, the Institute of Black Women, was the most visible non-governmental organization
assisting Blacks and Browns with legal problems in So Paulo at the time.
79
See the trial court judges argument, Proc. Civel n 1.913/92. 36th Vara Civel. So Paulo.
April 1993, p. 7-8.
80
One important evidentiary dispute was the Office of the District Attorneys criticism of the
inclusion of evidence of the experience of African Americans in English. At the heart of this

23
Court accepted the District Attorneys assessment
81
that the research had not
established the ads offensive character but that the majority opinion favored the ad.
The Court upheld the constitutional primacy of liberty of expression over the mixed
public response and upheld the original finding.
82

Drawing explicitly upon the ideology of the Brazilian nation, a minority judge
agreed with the majority finding about the ad but questioned the Public Prosecutors
standing in bringing the case. This judge argued that a divided response indicated that
no collective rights had been violated and that, therefore, no one possessed standing to
bring the case. Further, he charged that the allegation opposed national interests:

The theme of injury or affront to the Black race must be seen more as
speculation . . . in a country like ours and the rest of Latin America, to
attempt to inject racial conflict is a gesture of pure ignorance, rooted in a
lack of understanding of our history and development, because what we
have today in culture, music, gestures, customs, conversation, food, in all
areas, is the result of ethnicity of a mixed race.
83


The Court had implied that a clear majority of a group must be offended to sustain a
finding of racist communication. This judge expanded the majority opinion by limiting
standing to majoritarian groups. These holdings negate the judicial role to settle claims
between individuals or groups and create a requirement that does not exist for other
collective interests.
84
Finally, this implied threshold for harm to the Black community
speculates on the lack of coherence among Brazilian Blacks and Browns.
In general, judicial evaluation of prejudicial content was highly informed by a
judges acceptance of racial democracy. Most but not all
85
judges accepted the humor

linguistic dispute was the relevance of the experiences of others, particularly African Americans,
in assessing harm. The Appeal Court did not request translated materials and declined to
consider evidence in a foreign language, especially English, the most difficult in the world.
See Apelacao Civel N 220.246-1/0, Tribunal de Justica do Estado De Sao Paulo, p. 2037.
81
The DA attacked PROCONs conclusions about the harm to the Black community. The DA
noted that a majority (in fact: 34.1%) of interviewees viewed the ad as good or interesting,
that 18.2% thought it demonstrated unity, and that 8.2% viewed it as prejudiced, racist. Ibid.,
p. 2023-4. In response to the question, what did the ad dishonor? 36.8% said nothing, and
25.4% said the Black child. The DA argued that this question was biased and concluded that
the majority was not offended. Ibid., p. 2016-2026.
82
Ibid.
83
See the opinion of Judge Olavo Silveira, ibid., p 2044-2046.
84
The statute on collective interests designates entities that may defend the collective interest,
such as the interest of children, consumers, and the environment. Those designations, which
include the public prosecutors office, do not suggest standards to evaluate the
representativeness of the entities. See the Public Law 8547/85 in Silva, 1998, p. 44. Nor does
the Constitutional or legal mandates against discriminatory communication suggest thresholds
of audience response.
85
In his historic holding on the case of the fired Eletrosul worker, Judge Ramos rejected the
humor defense as an insufficient explanation for a highly discretionary personnel procedure.

24
defense that placed humor within the national tradition.
86
I claim that the ideology of
the Brazilian nation informed that holding and thoroughly infused court proceedings. In
closing, I sketch a theory about the relationship between the ideology of the Brazilian
nation and the legal theory of racial discrimination.

About the Ideology of the Nation and the Legal Theory of Racial Discrimination
This paper has illustrated the interpenetration of the ideology of the nation, the
theory of racial discrimination, and social practice in Brazil. I show that the origins of the
theory of racial discrimination in the 1951 law resided in the ideology of the Brazilian
nation and that the relationship between that theory and the ideology of the nation
continues to influence current thinking. The anti-discrimination law punishes social
practices deemed contrary to Brazilian racial democracy. Social practice adapts more
readily to law and to ideology than either law or ideology adapt to social practice.
(Siegel, 2000) Consequently, most social practices that contribute to the reproduction
of inequality remain beyond the scope of the law.
Although many significant problems exist in the Brazilian application of justice,
87
I
argue that the interpenetration of ideology, law and social practice shapes the meaning
given to the law. The legal theory of racial discrimination and the ideology of the
Brazilian nation jointly inform defendant strategies and judicial evaluation of those
strategies. The legal definition of racial discrimination as an act of prejudice
emphasizes the importance of a defendants character. Defendants have effectively
emphasized their Brazilianness in their claims and have speculated on judicial
concordance with racial democracy. Most, but not all, Brazilian judges have accepted
that defense, holding that a Mulato or cordial Brazilian could not be prejudiced.
Judges have placed litigants outside the nation and societal norms: humorless,
unrepresentative of other Blacks, or out of place within society. I argue that the laws
theory of racial discrimination as an act of prejudice, a consequence of the
interpenetration of law, ideology and practice, grants judicial significance to the
character of the principals.
88


See.Processo. n. 0412/92, Poder Judiciario, Justica do Trabalho, 12
th
Region, Jan 16, 1995.
86
The most famous humor defense was that of the popular singer, Tiririca, whose song Look at
the Hair on Her, ridiculed his mother. Tiririca compared his mothers hair to a brillo pad, and
insulted her for smelling worse than a dirty animal. Tiririca claimed to have been only teasing
his mother for always wearing the same clothes to his concerts. A civil judge in So Paulo held
that Tiririca not only lacked intent but that his humor was quintessentially Brazilian. According
to the judge, The exploration of this theme in Brazilian music is very old, well-known, tolerated
and affectionate, evidence that the most important aspect of race is the ethnic-cultural formation
of the Brazilian people. Email correspondence, Http://www.racial.cjb.net. June 8, 1999.
87
The weakness of the Brazilian rule of law is widely recognized. Brazilians fear retaliation from
others, who seek to influence whether, how and when any law might be utilized. See DaMatta
(1991). The police have been deservedly criticized for not protecting, but abusing citizens. See
Holston and Caldeira in Aguero (1998), Cano (2001), and Pinheiro in Mendez (1999).
Consequently, most Brazilians (80%) do not report crime because they do not trust the police or
the judiciary. See Carvalho, et al (1998, p.39).
88
To be sure, there have also been victories. Elsewhere I have discussed these victories and

25
The selective application of the law reflects judicial ideology. Courts have
applied the theories of overt racial discrimination and covert employment discrimination
inconsistently. The selective use of burden-shifting reflected judicial acceptable of
hierarchical social practices in the employment discrimination cases. In the racial
discrimination cases, burden-shifting was neither obligated nor customary and reflected
a judges personal theory of racial discrimination. I argue those findings implicate
officials and legal standards. In contrast to the counter-balance to racial ideology that
can be provided by burden-shifting within a theory of covert discrimination, a theory of
discrimination as an overt act of prejudice grants significance to that ideology.
Under Brazilian racial ideology, a colorblind doctrine, the appearance of
distinctions matters more than the reality of social practice. US colorblindness fails to
distinguish an invidious distinction from a remedial policy and triumphs the lack of
distinctions without examining the actual context. Brazilian colorblindness contributes to
the view of most allegations as interpersonal disputes between colorless individuals.
Colorblindness does not demand equality but prioritizes the appearance of harmony.
Colorblindness has more deeply influenced state and society in Brazil than in the
US. Although Brazilian racial democracy is not a unitary ideology, popular versions of
racial democracy indicate a deeper penetration of national ideology in Brazil than in the
US. I suggest that Brazilian color-blindness is more compelling than US colorblind
doctrine because the elements of the Brazilian ideology, such as social exchange
between Brazilians of different colors, are highly visible. The bonds of affection
between many Brazilians of different colors reflect the power of the Brazilian national
project. (Anderson, 1991) The official version of racial democracy equates affection and
equality, a false but credible claim. (Eccles, 1985)
Thus, I locate the efficacy of Brazilian color-blindness in the construction of the
Brazilian nation, which I claim to be typical of the fusionist ideology of the nation.
89
I
use the term, fusionist, loosely and critically. A fusionist state claims to have
produced a new people by blending persons and cultures. Despite Brazils historic
claims about fusing a new people, the Brazilian state has combined multiple
approaches to transform the other, Black and indigenous Brazilians, into Brazilians.
An absorptionist state produces its new people by absorbing persons and cultures
into the dominant group, which sets the terms for the blending. The Brazilian state
historically thought that Blacks required total transformation and adopted absorptionist
policies that placed a burden on darker Brazilians to marry lighter than themselves,
lighten their children, and thereby lighten the race. (Mitchell, 1983) Under an
assimilationist approach, a variation of absorption, the dominant group views others
as capable of adapting to dominant norms. (Thornberry, 1991) Brazilian state policy
toward indigenous persons was assimilationist, conveying rights according to degree
of cultural assimiliation, until the Constitution of 1988. (Barroso, 1995)
True fusion probably does not exist. A dominant group seems unlikely to move

what explains the variation in judicial inquiry and outcomes. See Racusen (2002).
89
Because Brazil has the largest population of persons of Black African descent in the Americas,
the strongest and most visible Black movement, and the most developed anti-discrimination law,
Brazil also represents the leading case in Latin America. (Cottrol & Hernandez, 2001)

26
as far as other groups to develop the new culture and new persons. Instead, the
dominant group would seem likely to seek to control the terms of the fusionist
exchange: to retain power, rights and resources; to permit symbolic expressions of the
new person; and to protect its own image and position. Indeed, a dominant group
could more easily retain power in a state appearing inclusive rather than openly
absorptionist. Thus, the fusionist discourse can represent an effective strategy to
avoid conflict.
The fusionist, assimilationist, and absorptionist approaches share the
common assumption that subalterns need to be transformed. Brazil absorbed,
fused, and assimilated persons of African descent which destroys the possibility of
counter-narratives and, hence, the possibility of challenge and change."
90
I argue that
an all-encompassing fusionist nation, understood as these combined approaches,
particularly resists change and complicates the framing of racial discrimination. Other
fusionist countries, including several other Latin American countries, have also defined
racial discrimination as North American phenomena and have claimed that their nation
formation to have preempted discriminatory beliefs and practices.
91

Neither the ideology of a nation nor a states theory of racial discrimination are
fixed entities. The framing of racial discrimination can shift through other changes such
as significant societal mobilization. The possibility of such changes depends upon
existing democratic space, which historically has been scarce in Brazil. Effective
counter mobilization occurs within and stretches the boundaries of that democratic

90
See Addis (1991, p. 1240).
91
At least two Latin American countries still deny the existence of racial discrimination within
their borders. In a 1996 report to the United Nations, the Venezuelan state insisted to have an
unusually tolerant people:
As everyone knows, Venezuelan history has been characterized by a continuing and
persistent tendency towards equality and tolerance . . . The Constitution . . . states:
"Discrimination based on race, sex, creed or social status shall not be permitted" . .
.[which reflects] the multiracial composition of the Venezuelan people formed by the
three original races, Indian, White and Black, which developed into the Venezuelan
nation.
See Venezuela. Thirteenth periodic report of State Parties due in 1994. 18/03/96.
CERD/C/63/Add.8/Rev.1. United Nationals Human Rights Website: http://www.unhchr.ch/.
Consulted: May 13, 2001. p. 3. (Emphasis added)
The 1999 State Report by the Dominican Republic to the same UN body contained a similar
theory that Dominicans are clearly of mixed race and fully socialized from a cultural point of
view and hence adverse to racial discrimination. See the Dominican Republic. Eighth periodic
report of State Parties due in 1998. 11/02/99. CERD/C331/Add.1. United Nationals Human
Rights Website: http://www.unhchr.ch/. Consulted: May 13, 2001. P. 5.
That report promoted the Dominican Republic as an international model:
Racial discrimination between Dominicans, if it ever existed occasionally and selectively,
has disappeared from the country as a form of social pathology, so that the Dominican
Republic may be considered as a pillar of the Charter of the United Nations, the United
Nations Declaration on the Elimination of All Forms of Racial Discrimination and the
Convention under reference.
See, ibid, p. 7.

27
space. A mobilizing groups language encounters structural constraints:

Popular struggles are a reflection of institutionally determined logic and a
challenge to that logic. People can only demand change in ways that
reflect the logic of the institutions that they are challenging. Demands for
change that do not reflect the institutional logic . . . will probably be
ineffective.
92


Thus, counter mobilization encounters the logic of the formation of the nation. A states
approach to its nation in one period will constrain mobilization in the next.
93
Mobilization
could seek to reframe racial discrimination in terms of other core societal beliefs, such
equality, or challenging the concept of the nation and reclaim the Brazilianness of the
racial discrimination litigant. In a sense, Brazils Black movement has adopted the latter
strategy and challenged Brazil to acknowledge the African presence in Brazil and
become a real fusionist nation.
Current historic changes reveal Brazil to be society in profound transition. Since
the UN Conference on Racism in September 2001, Brazil has adopted affirmative action
policies for federal employees and selected public universities. President Lula da Silva
installed the first national ministry of Racial Equality as a cabinet-level agency in March
2003
94
and appointed the first Black Supreme Court Justice in May 2003.
95
However,
the proposed Statute of Racial Equality draws upon the long-standing criminal model of
discrimination as an act of prejudice. Would a judge be more likely to hold a Mulato
guilty under the new law? I argue that that holding depends upon a legal theory of
racial discrimination as a problem in equality rather than prejudice. The legacy of
viewing racial discrimination as an act of prejudice persists into the current era with a
new commitment to racial equality.

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