Note on the quota system in Brazil

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By JORGE LUIZ SOUTO MAIOR*

A policy of insertion of black men and women in a country marked by enslavement

There is no point in insisting on the theme of structural racism, even explaining that the issue of racism in Brazil has historical roots and is still present today as a structuring element of a model of society integrated into the context of dependent capitalism.

It is not even worth mentioning how much the historical coexistence with enslavement bequeathed us a way of naturalizing racial violence, the most prominent of which is denial, that is, denying that there is a racial issue in certain acts and words.

Much less would it be worth bringing up the narcissistic pact of whiteness, as Cida Bento would say, which is established among white people, denying the racial issue or even preventing practices of correction, so that they can keep their privileges intact.

I will only speak of a concrete situation, without sociological interpretations or major digressions of a cultural nature. The concrete fact is that, in 2014, through the approval of Law n. 12.990, black men and women won the right to 20% quotas in federal public tenders.

Under the terms of the law in question, 20% of the vacancies offered in public tenders for filling effective positions and public jobs within the scope of the federal Public Administration, autarchies, public foundations, public companies and mixed economy companies controlled by the Union, are reserved for black men and women.

It is important to realize that the number of black men and women approved will not correspond, strictly, to 20% of the total number of non-quota holders, since what is foreseen, in the law, is that black candidates and black candidates also compete, concomitantly, for “broad competition” vacancies (art. 3), and the approval of black men and women in broad competition will not be computed “for the purpose of filling reserved vacancies” (art. 1, paragraph 3).

Thus, in a very objective way, when filling the vacancies that were “offered”, 20% of them, at least, must be occupied by black men and women. Simple, isn't it?

It should be, were it not for the fact that we are talking about a policy of insertion of black men and women in a country marked by enslavement. Overcoming the logic of historical reparation integrated into the law in question, public notices for tenders have been guided by the meritorious criterion, which only serves to reproduce the entire logic of exclusion experienced by black people to date.

By setting a “cutoff point” applicable to all those enrolled in the competition, the criterion of “reservation of vacancies” is broken, making the privileges of the white population prevail. And it is worth noting that any grade, said to be minimum, is still a “cutoff grade” and even if it is deemed necessary for some aspect, it cannot be the same for “quota holders” and “non-quota holders”, under penalty of to eliminate, in particular, the reservation of vacancies.

In the II National Contest for Admission to the Labor Judiciary, this was exactly what happened. Under the terms of item 10.21.3 of the Public Notice of the contest, it was foreseen that the 1.500 (one thousand and five hundred) candidates who obtained “the highest grades and all the ( as) tied for the last ranking position”.

And the same clause provided that: “In addition to these, candidates who compete for vacancies for people with disabilities and black people will be invited, provided that they have obtained the minimum score required for all ) the other candidates.” The Notice, therefore, did not set any quota for black and black people. He only said that all self-declared black people would move on to the second phase if they met the minimum meritorious requirements, therefore not being subject to the level of an eventual higher cutoff score in the “broad competition”.

The meritorious requirement was thus recorded in the Notice: “10.21.3 The candidate who obtains a minimum of 12 (twelve) correct answers in the first block of questions will be considered qualified in the Selective Objective Test, 9 (nine) correct answers in the second block of questions and 9 (nine) correct answers in the third block of questions and, once this condition is met, also reach at least 60 (sixty) correct answers from the total of questions in the 3 (three) blocks. ”

The formula used to quantify those approved may seem to be an advantage, as black candidates would not even be subject to the maximum number of 1.500 for approval in the first phase or any other limit, since “all” who reached the minimum score would be called .

However, the correction of historical inequality requires concreteness, that is, it is not satisfied with abstract precepts that, in appearance, satisfy the “demands” of the law. In fact, the quota system cannot be conceived as an obstacle to be overcome, as a nuisance to which the organizers of a public contest are submitted. There must be a will to promote, through this system, a way, even if simple, of correcting the violence suffered by black people.

Therefore, the formula created cannot, under any circumstances, satisfy itself based on a formal logic that is still based on the criterion of merit, which is one of the mechanisms of greater violence and oppression imposed on black people, from the Land Law of 1850 to the present day.

In this specific case, considering the difficulty of the test, not even the maximum number of 1.500 approved in the broad competition was reached – what had happened in the XNUMXst Contest, it is worth noting, and is therefore, at least, presumable.

Considering the terms of the quota law, if there were 1.500 vacancies for the Ampla Competition, 300 vacancies should be set for racial quotas and 90 for Persons with Disabilities, without considering those, among these, that were approved in the Ampla Competition. Remember that under the terms of the Notice itself, the number of approvals for black candidates, in addition to PCDs, would be unlimited and considered beyond the limit of 1.500. However, no black person and no PCD were approved by the quota criteria.

A total of 1430 candidates were approved, all in broad competition, including 191 self-declared black and black candidates (12,8% of the total approved), 45 people with disabilities and one black woman with a disability (3,14 of the total number of candidates). approved).

It so happens that the black men and women and PCDs were approved by applying the same conditions to which all other candidates were submitted; that is, they were approved within the context of “broad competition”. The criterion for its approval was only meritorious.

This means that, concretely, the quotas were not applied. Mathematically, the approval by quotas was 0%, but the law provides for it to be at least 20% for black men and women and 5% for PCDs. Even if one does not want to take the analysis to the field of the slavery tradition, one cannot fail to think about it when faced with an argument that tries to justify that 0% of approved per quota was the due application of a law that fixed a percentage of at least 20%.

It is true that the CNJ, in a decision of 2022, approved a Resolution that guarantees black candidates the right to pass to the 2nd phase, just reaching a 6,0 grade, and a barrier clause and cut-off grade cannot be imposed on them. So, it can be said, in defense of the Contest's health, that the black men and women who were not approved did not reach the minimum grade of 6,0.

But the CNJ's regulations are, obviously, a protection for quota holders, within a context in which their right to the 20% quota was denied because a cut-off score higher than the minimum score of 6,0 was imposed on them. Thus, by eliminating the cut-off point or barrier clause, the intention was to ensure that the Quota Law reached its concrete objective of an assertive promotion of inclusion. Therefore, in other words, what should be extracted from the CNJ Resolution is the establishment of a disparity in the cut-off score between quota holders and non-quota holders, as a way of guaranteeing respect for the percentage established by law.

In the case of the II National Contest for Labor Judges (and which also took place in the I Contest), the difficulty in solving the test prevented the minimum score of 6,0 and the other meritorious criteria from being achieved by a total of people corresponding to the number of vacancies offered (1.500), it should be very clear that the maximum number for approval in each phase of the contest follows the same criteria of vacancies offered.

As a consequence, what was established was a cutoff score, equivalent to the minimum score, applicable to all candidates, regardless of whether they are quota holders or not. In short, leaving everyone subject to the same level, the “correction” of the inequality intended by the law was eliminated.

Specifically, only black men and women who would have been approved in the broad competition were approved. And the same happened with people with disabilities, to whom conquered rights were also denied. But what is intended by the quota system is to approve, in a minimum percentage, people who, by meritocratic criteria, given the very historical reasons for exclusion, would not be approved.

Given the characteristics of the contest, the vacancies reserved for blacks and blacks should be subject to different criteria, including the minimum grade, in order to preserve the right to broad competition. This is obvious and necessary. Otherwise, as it was even possible to verify, the reservation of vacancies only took place formally, because, given the difficulty imposed on everyone, the minimum grade can be transformed into a cutoff grade, attracting everyone, regardless of special condition, to the same competition.

It can be seen that in Enem, for example, there is a percentage reserve of vacancies for quotas and these vacancies meet specific criteria, in order to be, concretely, filled.

In the case of the public tender, one may even envision the need for a minimum score, but if the cut-off score corresponds to the minimum score, this should have repercussions on the specific competition for vacancies by quotas, in order to guarantee the minimum proportionality of approval , and even, if necessary, as in the case of tests that are presented at an artificially and purposefully high level of difficulty, even eliminating the minimum grade, so that the inclusion process can be carried out, in concrete terms. In the quota system, the inclusion policy takes precedence over the criterion of merit, not least because test scores do not assess competence for the position, being merely the reproduction of the productivist and meritorious logic, which is notoriously exclusive.

The quota system came to break this logic and constitute a real way of entry for black men and women and PCDs in positions from which they were historically excluded. No wonder, just 15,9% of labor magistrates in Brazil are black men and women. And this percentage is the highest among all other branches of the Judiciary.

Following the criteria in question, set out in the Notice, 19 black candidates and 3 PCDs were approved, corresponding, respectively, to 8,5% and 1,3% of the total of 223 approved ( to the). And this approval, it should be said, was not due to the quota system, as the 19 black men and women and the 3 PCDs obtained grades that allowed them to join the Ampla Competition list. That is, the approval by quotas was 0%.

And, from a concrete point of view, if we consider that the percentage of black men and women in the labor magistracy is 19% and that, already under the rule of the quota law, the approval in the aforementioned contest was 8,5% (being 0% by the quota system), instead of having advanced in the policy of inclusion and in the project to correct inequalities, what took place was an authentic setback, despite the “National Pact of the Judiciary for Racial Equity, presented by the president of the National Council of Justice (CNJ) and the Federal Supreme Court (STF), Minister Rosa Weber”, on 25/11/22, with the purpose of establishing the formal and solidary engagement of the Courts with the transformation of the scenario of racial inequality , with the promotion of actions of equity, inclusion, combat and prevention of racism.

The fact is that, even in the face of the unequivocal terms of the law, the minimum necessary for the correction of this reality is not being fulfilled. The reality of a society in which black men and women are: 54% of the population; 19% among male and female labor judges; and 84% of people rescued in conditions similar to slavery.

In times when racism is fought and events are promoted to denounce and confront racial violence, including within the scope of the Labor Court itself, black women and men cannot deny the concreteness of their right to historical reparation.

An act is worth a thousand words. And what we, the white and privileged population, owe the black population is not a romanticization of their suffering, but, at least, respect for their struggles and achievements. In this case: the reservation of at least 20% of vacancies offered in a public tender.

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors).

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