BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

issues. For instance, there is the acknowledgement of civil partnership (and its inheritance rights), established not under the law, but as the Federal Supreme Court has upheld. 17 On the other hand, there are other affirmative action measures under the law, aimed at disabled people, as the right to a proper education system, adapted to their needs. Nevertheless, their rights are not effective, considering most schools in Brazil do not show conditions to implement the regulation. 18 Therefore, affirmative action measures aim at achieving freedom and equality among the people in society, but the discussion of those principles shall observe fraternity aspects, as Peter Häberle assesses. 19 The fraternal optics represents the goal of affirmative action measures, considering they develop tolerance, altruism, and diversity respect, even if imposed by law. These measures shall be provisional, considering they serve to implement exceptional protection, giving privileges to a group of people affected by discrimination, aiming to prevent these actions from getting undesirable and developing fraternity gradually. Whenever the groups of people overcome that social aspect, the measures must disappear, so that society’s maturity can take its place. Not observing the temporary aspect might create discrimination, the action’s purpose opposite. 20 Thus, every affirmative action measure must establish its final term (or a further analysis regarding its maintenance period) by its implementation. Brazilian courts of law also recognise the actions’ temporary aspect as a fundamental tool in achieving their effectiveness, according to what they have upheld. 21 Case law assesses the maintenance of unequal rights to a specific group of people, after achieving their purpose, should create a situation of unjustified discrimination towards the other society members. Manoel Gonçalves Ferreira Filho 22 illustrates the affirmative action measures must fulfil five basic requirements to adjust to Brazilian constitutional system: 1) to clearly identify the favored group; 2) to offer a proportional and reasonable advantage, capable of neutralizing the inequality perceived; 3) to aim only at correcting the social inequality situations; 4) their effectiveness shall be at the lower possible level of onerosity to the other members of society; 5) at last, they must be temporary actions, immediately repealed once they achieve their results. Moreover, affirmative action measures may arise from judicial activism, which is the Judicial Branch response to the social claims, acting proactively to interfere in the 17 BRASIL. Supremo Tribunal Federal. Ação Direta de Inconstitucionalidade (ADI) 4277 e Arguição de Descumprimento de Preceito Fundamental (ADPF) 132 . 2011. 18 CRUZ, Á. R. S. O direito à diferença . Belo Horizonte: Arraes Editores, 2009, p. 215. 19 HÄBERLE, P. Libertad, igualdad, fraternidad: 1789 como historia, actualidad y futuro del Estado constitucional. Madrid: Trotta, 1998. 20 MÈLIN-SOUCRAMANIEN, F. Le Principle d’égalité dans la Jurisprudence du Conseil Constitucionnel. Paris: Economica, 1997, p. 206-7. 21 BRASIL. Recurso Especial n. 1.132.476/PR. Upheld in October, 13 th , 2009. RSTJ , v. 18, p. 751. 22 FERREIRA FILHO, M. G. Aspectos jurídicos das ações afirmativas. Revista do Tribunal Superior do Trabalho . Porto Alegre, v. 69, n. 2, Julho-Dezembro, 2003, p. 74.

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