Associação e discriminação: limites jurídicos para os critérios de admissão, exclusão e categorização de associados

Abstract

Reconciling associative autonomy with the prohibition of discrimination is not an easy task. The right to freedom of association allows associations to define their internal rules according to their own interests, but the right to equality prohibits the establishment of bylaw’s clauses considered discriminatory. Faced with this apparent dilemma, the work aims to identify substantial guidelines that can subsidize judicial control of the criteria for admission, exclusion and categorization of associates in a manner consistent with the national legal system. Through a theoretical research of juridical-dogmatic nature and comprehensive comparative typology, the work seeks to detail the normative context of the problem of discrimination in the associative sphere, to question the models currently used for its confrontation, and to propose ways that lead to safer results. It is hypothesized that the verification of the lawfulness of the differentiated treatments promoted by the associations can be improved by considering the theories of discrimination developed in the field of moral philosophy. These theories provide detailed insights into the elements responsible for characterizing a distinction as discriminatory and can, therefore, be used to make legal discussions more transparent, coherent and assertive. The research carried out confirms this assumption through the illustrative exposition and the hypothetical application of the notion of discrimination as demeaning formulated by Deborah Hellman.