By Lincoln Ellis 3/31/10
As more Afro-Brazilians benefit from affirmative action programs and graduate from universities, activists are concerned that skilled black applicants will be turned away by employers who favor white employees. Employment discrimination has been shown to exist at the macro level, but it is difficult to prove in any individual case. We met with a group in Sao Paulo: www.ceert.org.br that explained how white men are over represented in banking (they occupy a higher percentage of jobs in banking than their percentage of the population with the requisite education levels), and black men and black women are severely under-represented by the same measure.
Proving discrimination against individual applicants for jobs and promotions is difficult, however. This issue will be developed in future posts, but for now, it is worth noting that the plaintiff must prove specific intent. This is more difficult than the Title VII burden shifting regime, in which a plaintiff can use underrepresentation of minority employees to shift the burden to an employer to show no discrimination.
Another problem is that their is not a well-developed plaintiffs’ bar to bring these cases. This seems to have to do with the difficulty of prevailing in these cases, low damages, and low contingency fees.
Finally, one of our contacts mentioned that discovery laws are more restrictive in Brazil than in the U.S., so a plaintiff who suspects discrimination would have a more difficult time gaining access to the employer’s records.
Of course, employment discrimination in the U.S. persists in spite of anti-discrimination laws. One audit study from MIT showed that applicants with White sounding names were twice as likely as applicants with Black sounding names to be invited for interviews, when the resumes submitted were identical.
