Lack of legislation on sexual harassment at work, say experts

Combating sexual harassment in the workplace involves tougher penalties, a labor law that punishes companies and the obligation to create policies to prevent and combat the various types of violence to which women are subjected.

The assessment is made by the prosecutor Gabriela Manssur, from the Women’s Ombudsman of the National Council of the Public Ministry, who has worked in high-profile cases, such as the complaints against the former head of Globo’s humor department, Marcius Melhem, and against the medium João Teixeira de Faria, known as João de Deus.

In the two years since the creation of the Women’s Ombudsman, Manssur says he has received 1,900 complaints of violence against women, an increase of 80% compared to what the common ombudsman had registered until then.

In the Justiceiras project, a multidisciplinary network of assistance to women victims of violence conceived by Manssur, between March 31, 2020 and January 31, 2022, 8,390 complaints were registered – there is no separation by type of violence, whether domestic or at work, for example.

The publicity of cases like those of Melhem and João de Deus helps to boost the numbers because victims and witnesses feel safer to speak, evaluates the prosecutor.

“What I see is that the topic has been talked about more because of these complaints from women in work environments. It’s still low [o número de ações judiciais e denúncias] because the woman has difficulty in producing the evidence. It’s her word against the word of someone more important,” she says.

Today, labor legislation does not address the issue. The crime of sexual harassment is provided for in article 216 of the Penal Code, which provides for sentences of one to two years of detention. The text of the law also defines the issue of harassment as the attempt to obtain a sexual advantage or favor perpetrated by a hierarchical superior.

For lawyer Tainã Góis, from the Women’s Network of Jurists, this limitation is, in itself, a sign of the delay in the legal repertoire to combat harassment.

“It only considers harassment from a superior, when it happens in different ways, between colleagues of the same level, or from a subordinate”, he says. “It’s legislation that’s all long overdue.”

The sentence of up to two years, which can be extended if the victim is under 18, is also a problem, according to prosecutor Gabriela Manssur. He also defends that there is a specific labor legislation to deal with sexual harassment and that it includes companies on two fronts.

One is in strict liability, in which the company is obliged to indemnify the worker and guarantee the employment relationship of the victim who reported it. On another front, that companies create what she calls “female compliance”, from which institutional policies for service are built, with team training and the creation of protocols.

“If there is harassment, the company needs to have a protocol, a sequence of procedures that are adopted immediately”, says Manssur. “Today, few cases reach the Public Prosecutor’s Office because companies hold back, do everything to stifle it.”

In the Labor Court, in 2021, there was an increase in labor lawsuits discussing sexual harassment, compared to the previous year. There were 4,690 new shares last year, 4,262 in 2020 and 4,786 in 2019.

Gois, from the Women’s Network of Jurists, considers the number to be very low and says that “not by a long way” corresponds to the reality of the job market. She believes that the fee rule amended by the labor reform also discourages taking action.

“Women are already afraid to report and even run the risk of having to pay the other party’s lawyer. In addition, there is a lack of expertise in the law firms to deal with these actions, because they are difficult cases to prove. off-balance sheet, in which the evidence is subjective”, he says.

The lawyer also recalls that, in the Labor Court, the employee or employee who felt sexually harassed will demand the company’s responsibility for failing to curb this type of behavior or for maintaining an unprotected environment.

The victim can also individually sue the subject who committed the crime in the civil and criminal spheres. According to the prosecutor of the Women’s Ombudsman, for cases that occurred from 2018 onwards, the Public Prosecutor’s Office can also prosecute the perpetrator of the harassment without the victim having registered a police report or filed a complaint.

For Gois, the case of Melhem – eight women filed complaints against him – is a practical example of what women experience in their work environments. “We deal a lot with sexual harassment as if it were an individual issue, but we don’t deal much with systemic harassment, which comes from the culture of companies”, she says.

The allegations of harassment, according to the lawyer, usually have points in common. There are praise for the employee’s clothes and body or, even, an attempt to demean the employee due to physical characteristics, in comparison with other women in the same environment.

“There is also the most caricatured or explicit harassment and the one in which the woman is at risk of losing a position or a promotion if she refuses the seduction game, the invitation to lunch.”