Por que não uma igualdade para valer? Reconhecimento, minorias e a vedação à discriminação indireta no Brasil

Abstract

This work s goal is to analyze the principle of equality as prohibition of indirect discrimination under 1988 s constitutional order. In order to do so, first, it intends to settle the theoretical premises that, bases on the theories of justice as recognition, allow identifying three functions of the equality principle. These functions are the rupture of privileges and honors; the expansion of the Law through the inclusion of vulnerable groups and the respect to its basic existential demands; and the pluralization of value horizons through shifting to the Law demands traditionally associated to ideas of achievement and merits. Based on these three functions of equality, this study holds that the principle of equality before the law must be conceived as a principle prohibiting indirect discrimination that is to say, discrimination that reveals itself in the real world as consequence of apparently neutral, abstract and general acts. Following this affirmative, this works turns to the specific study of the prohibition of indirect discrimination in comparative law, as a mean to lay out the foundations that will allow to illustrate the tools to overcome this form of discrimination under the Constitution of 1988. Finally, it intends to lay out a proposed analysis of the indirect discrimination aimed to promote equality as recognition by considering three steps and its particularities: the demonstration of a prima facie case of indirect discrimination, the analysis of a justification for the indirect discrimination and the possibility of reasonable adaptation or accommodation.