UC Law SF International Law Review


In this paper Benjamin Hensler examines the paradoxical underdevelopment of Brazilian antidiscrimination law and its impact on the country's Afro-Brazilian population - a group that includes more than 40% of Brazil's citizens, and the vast majority of its poor. The author considers why, despite the presence of both widespread racial discrimination in the country's private labor market and explicit prohibitions on employment discrimination in its constitution, there has been - until quite recently - a glaring absence of successful legal challenges to racial discrimination by Afro-Brazilian workers. His paper discusses the interwoven relationships among three key factors that have inhibited the development of Brazilian antidiscrimination law: (1) the country's distinctive ideologies of race relations, which either deny the existence, or downplay the significance, of racial discrimination; (2) its civil rights statutes, which narrowly conceptualize racial discrimination as manifested only in explicit acts of prejudice; and (3) as a result, the indifference - and, at times, hostility - on the part of Brazilian judges and public prosecutors toward litigation challenging race discrimination in the workplace. The paper balances this critical assessment by examining the recent emergence of promising strategies for combating racial discrimination through Brazil's civil litigation system - including lawsuits asserting direct constitutional claims, recourse to the country's labor courts, and experimentation with Brazil's unique version of class action procedure.