Note from BW of Brazil: On this little blog there have been a number of articles that present Afro-Brazilians outside of the stereotypes that Brazilian society likes to associate with this population. No, not all black Brazilians dream of scoring goals in the World Cup wearing the green, yellow and blue. And not all black Brazilians were born with “samba in their foot” to be presented in the country’s world famous Carnavalthe country’s world famous Carnaval celebrations. Yes, there are Afro-Brazilians who are doctors, CEOs, professors and entrepreneurs who make up a minority of black people who are part of the country’s elites. And believe it or not, it is within these upper middle and upper class circles where they often feel the brunt of the sentiments of a society that is not comfortable with them precisely because they don’t fit into the stereotype that has been reserved for people who look like them. Take the successful judge featured in today’s post. What conclusion would you come to if people consistently told you, “you don’t have the face of a judge” after you spent years preparing yourself to be just that?
“A lawyer asked that his client be tried by a white judge and not by me”
By Kalleo Coura
“Wow, but you don’t have the face of a judge,” is a phrase that Judge Mylene Pereira Ramos is very accustomed to hearing. For many of her interlocutors, Mylene doesn’t look like a judge for a specific reason: she is black.
A graduate in Law from Mackenzie Presbyterian University, Mylene holds master’s degrees from Stanford University in California and Columbia University in New York, where she delved into Direito Internacional do Trabalho (International Labor Law).
A labor judge since 1994, a few years ago she had to read an appeal that left her outraged. The lawyer of a skinhead who required a labor relationship with a music record company and had the request denied by her, filed an appeal in which he asked that his client to be tried by a white judge. “It was very demeaning to read that. I had never seen such a thing,” she says.
Currently, Mylene is director of the Labor Forum of the South Zone and is substituting a judge in the Regional Labor Court of the 2nd Region. The judge received JOTA reporters in her office and spoke about prejudice, lack of diversity in the courts and labor reform.
Read the interview:
Why did you want to be a labor judge?
When I was five, six years old, my father worked on the subway works here in São Paulo. He stayed all week at work and didn’t go home. I saw my angry mother talking to him. He didn’t have health problems, but he took medicine – in order not to sleep. He worked for days without sleep. After four straight days without sleep, working 24 hours, he suffered a stroke at age 36. Not even a machine produces this way. He spent two months between life and death, survived with sequelaes, and retired on disability shortly thereafter. My mother worked all her life as a maid and also retired because of disability. When I started thinking about taking a course, I thought about Labor Court because I imagined that with my life experience I could contribute – not defending the workers, but having the knowledge of an insider, who has seen some situations inside. I wanted to be a labor judge because one of the experiences that struck me most in life was seeing my father losing his health because of the medicine he took to not sleep and work. Whenever I ride the subway I remember the time when a friend of his came home to tell us that he was in the hospital between life and death.
There is little diversity in the courts in general. How many judges are black here at TRT-2?
Here at TRT-2 we have only one black judge, Dr. Rilma Hermetério [among 93 judges], and in the first degree, I only know of another first-degree judge who identifies himself as black [among 415 judges]. I talked about this issue at TEDx São Paulo, about the need for more racial diversity in the judiciary. Here there is no racial diversity. And a lack of diversity of gender, transgender or even in relation to the issue of sexual option we don’t see judges positioning themselves. Justice needs diversity. Each of us is different. We are essentially the same, but each one has a different experience of life. My mother being a maid has molded me into what I am today. I’m not like someone who was born in the Jardins or whose the father is a farmer. It’s me, Mylene, who had this particular life experience. This is what causes the judge to establish certain evaluation criteria in life, beliefs and values. When you have several judges, you will have diverse people evaluating cases. For example, a complainant says he was discriminated against because he was called a “negão” or heard “samba aí” (dance a samba over there) from his colleagues. But the witness says: “It was a joke, we asked him to samba because we thought it was beautiful. Meu melhor amigo é preto (My best friend is black), it wasn’t prejudice.” A certain judge may ask himself: “Where is racism? There’s no problem.” I, because of my story, will analyze it differently.
Have you ever suffered prejudiced as a judge?
In what way?
I think one of the great prejudices is you not being recognized for who you really are. This week, a lawyer came to give me memorials. I was in the room along with the staff. I said “yes?”. She got a bit like this and said: “You’re the judge? Wow, you’re so young, I didn’t think you could be the judge. You don’t have the face of e a judge.” Not having the face of a judge is a phrase I always hear. When a person is scared and can’t recognize in someone black the figure of a judge, it’s not his fault; it’s society’s. This is a reflection of the lack of diversity in the Judiciary. My mother sometimes comes to the forum to see me working. This happened very seldom. But in those very few times, my mother heard comments, such as: “look how absurd: this woman is a judge. A while ago she would be in the kitchen of my house washing the floor.” Sometimes extreme cases happen. I dismissed as inadmissible a labor claim from a skinhead who, in fact, had no suitability. After being arrested in the act of having assaulted a black homosexual on Avenida Paulista, he was dismissed from work. The lawyer filed a motion saying that he wanted his client’s case to be tried by a white judge, not by me. Am I having prejudice because I am black? The person actually wrote that, we are in a sick society.
Have you taken any action against this lawyer?
No. I am a member of the commission of racial equality of OAB (Brazilian Lawyer’s Guild) and I have a good relationship with the lawyers’ class. I always opt for the dialogue and I preferred not to create a controversy, even because the questioning about my partiality due to the color of my skin was defended in ordinary appeal, on which the TRT-2 would manifest itself. But it was very demeaning to read that. I’ve never seen anything like that before.
What about peers? Have you also suffered prejudice?
(Silence for seven seconds) Peers? I can’t say that I suffered from prejudice, something that was in front of me. I have friendship with all, I try to be a cordial person. I have been in the court, here in São Paulo since 1995. I have been a judge since 1994. People know that I am very well prepared, that I created a theory about procedural harassment, which was internationally recognized and also influenced the New Code of Civil Procedure as it is today. So it gets harder for you to come and confront it. But we know that many criteria are subjective. For example, the criterion of meritocracy. Meritocracy within the Judiciary has some basic requirements – and being black doesn’t help. Some criteria exclude. If you have the opportunity to promote a white judge or a black judge, the white, with surname, with family history, is usually the chosen one. This goes for the election of the fifth constitutional as well. In the last election there was a black candidate who was very well prepared – and it was not the first time she was not elected. For being subjective, this criterion may exclude blacks and other members of historically discriminated groups. I am part of a group of black women precisely to discuss the empoderamento da mulher negra (empowerment of the black woman).
Do you consider yourself an activist of this cause?
Yes. Now the word activism is kind of dangerous. I’m not a court activist. We need more black judges not because the black magistrates will defend the black parties. Yes, we need to have more representation. Now as a citizen, woman, and black, I am an activist for the empowerment of black women and for more diversity in general. In here I am a judge like any other. I don’t look different for anyone from one color or another. I am an activist in my life as a citizen.
Do racial quotas work well in Labor Justice?
We have a structural problem. Throughout an inheritance of slavery, blacks find themselves on the lowest level of the social pyramid. This whole issue makes it difficult for most blacks to have access to quality education. The competition for access to the position of judge is very demanding – and it has to be really demanding. The quotas, in this case, don’t solve anything at all, because there are plenty of vacancies. Black people, however, don’t go through because they didn’t have a quality education like the white candidates had. As long as black children and black adolescents don’t have access to quality education, they will not be able to pass the competition for the judiciary. And without a different judiciary in the first instance we will not have a different judiciary in the second. Blacks are dammed on the other side of the fence, which divides these competitions.
In the Itamaraty (Brazil’s Ministry of Foreign Affairs), a commission was set up to evaluate the self-declaration of candidates who said they were black. Would a more objective criterion for quotas, such as economic, be more appropriate?
The social quota based on income does not reach the racial purpose. If you are white and poor you will be more able to ascend socially and economically than a poor black. The racial quota is a reparation because of slavery. Slave mothers often took their children in their lap and threw them in the hot oil pot so that their children would not go through what they went through in the slave quarters. Families were separated, people didn’t have even a notion of the concept of family. We have scars back there that have repercussions here today with regard to family restructuring. There has to be a repair. The social quota does not solve this. These commissions to stop fraud are necessary. I participated in one of these commissions at the municipal level, where candidates went with their hands and faces made up to look black. In contrast, there are threshold cases where the person doesn’t have the black phenotype, but the whole family is black. It’s not an easy path. It’s trying to solve this. The law has to be specific. The criterion must be objective, just like obtaining foreign citizenship, as, for example, proving black ancestry up to the second degree. Commissions are not diabolical. They are a way to find out how to navigate this new policy.
Employers complain a lot about Labor Justice. Is there prejudice against the businessman on the part of the magistrates?
This question is interesting. A repeated lie often turns out to be a truth. To say that the Labor Court is prejudiced against the company we would need to see the statistics. How many causes are judged to be fully pertinent? A minority. The labor judge didn’t create the law, he was the legislator. It is he who can change the law. We apply the law as it is. It is certain that the employee is a less favored party in this relationship, so that is why the law gives him greater protection. There are companies that deliberately close the doors and don’t even follow the guides so that the worker can receive the unemployment insurance. We see this daily. The Labor Court applies the law so that this country does not become a large slave ship as it once was.
Does the Labor Court suffer prejudice from other legal operators?
It is very common to hear that the Labor Court is a “justicinha”. It is a very common term. The Labor Court suffers prejudice, yes, but it is a prejudice that is embedded in Brazilian society. It is a prejudice against the black, against the woman, the less favored, the poorest and also against that justice that receives the workers. The least favored can come here, even without a lawyer. Hence the prejudice.
What is your view on labor reform?
The law is not static because society is not static. Law regulates what is within a society and therefore needs to move. Now, how will this reform be done? A reform based on conclusions, that employees no longer need any type of protection because they have a strong union, in quotes we know, at a time like this mainly, it smells to me like a coup. First, there must be social tranquility to be discussed. I see videos on the internet saying that the fault of this crisis is the Labor Court because it always judges in favor of the worker, and that is not true. Or that the labor judges could be in a Soviet court. This type of campaign is extremely dangerous. A proposed labor reform based on false premises is not ready to move forward.
What about negotiating above the legislated?
There will be a moment when the negotiating one can prevail over the legislated. But we are not at the right time for this, whether from a political, legal or economic point of view. You have millions of unemployed people. There are cities in the interior of the state of São Paulo, where 70% of the population is unemployed, and if you negotiate that they work 24 hours a day, they will accept. Negotiation has to be fair. The parts have to be on equal parameters. The worker can’t have his rights devalued. First, we need to think about how to put people on an equal footing before they can negotiate. And this unreasonable outsourcing is liberating the precariousness in all areas.
Are you opposed to outsourcing?
Most of the accidents at work, of cases of discrimination, of precariousness, all are linked to outsourcing. The state itself hires companies that break shortly afterwards.
Have you ever had a case in which the Union was sued by outsourced workers by the TRT-2 itself?
I won’t say that it didn’t exist. Yes, there were and there are cases like that, but TRT-2 has a much more clinical eye on such outsourcing.