Work is an umbilically linked activity with all spheres of a person’s life, since a significant part of the human being’s working life is reflected in the personal, family, and social dimensions of the worker. In such a way, a healthy working environment is crucial for the good development of the person, in all said dimensions. It is for no other reason that social rights are erected to human rights status. The objective of this essay is precisely to verify the normative juridical contours that allow the subsumption of conduct as a form of moral harassment, and in these terms, the legal consequence of said practice. The on-screen research, using a methodology of qualitative analysis, using the hypothetical-deductive approaches of a descriptive and analytical character, adopting a bibliographic research technique, has its background on a dogmatic analysis of the construction Normative of the conduct of moral harassment in the bulge of the Brazilian juridical system having by axiological vector, always, the search of the effectiveness of the fundamental rights carved in the Federal Constitution of 1988.
Bullying has several denominations in comparative law: “acoso moral” in Spain; “Mobbing” in Italy, Germany; “Ijime” in Japan; “Bullying” in England; “harassmente” in the United States; “harcèlement moral” in France. The terminology of psychoterrorism is also common.
The so-called labor harassment is actually the result of the appropriation of the terminology “mobbing” used in science that studies animal behavior (ethology) which is related to the collective practice of animals practice hostile behavior with the aim of banishing one of its members from the conviviality of the pack.
Mobbing in the workplace was only used in the 1980s by labor psychologist Heinz Leymann. This terminology and the subject, in itself, gained prominence and importance in its study since 1998 with the work of the French psychoanalyst Marie-France Hirigoyen (Harcèlement moral: démêler le vrai du faux). (Cf. CASTRO, 2014: pp. 20-21 )
(Leymann, 1990) was the first to define the working mobbing, presenting the theme as follows:
Psychical terror or mobbing in working life means hostile and unethical communication which is directed in a systematic way by one or a number of persons mainly toward one individual. There are also cases where such mobbing is mutual until one of the participants becomes the underdog. These actions take place often (almost every day) and over a long period (at least for six months) and, because of this frequency and duration, result in considerable psychic, psychosomatic and social misery. This definition eliminates temporary conflicts and focuses on the transition zone where the psychosocial situation starts to result in psychiatric and/or psychosomatic pathological states. (p. 120)
In his bestseller, (Hirigoyen, 2002) presents the following definition on the subject:
Por assédio em um local de trabalho temos que entender total e qualquer conduta abusiva, manifestando-se sobretudo por comportamentos, palavras, atos, gestos, escritos que possam trazer dano à personalidade, à dignidade ou à integridade física ou psíquica de uma pessoa, por em perigo seu emprego ou degradar o ambiente de trabalho. (p. 65)1
The definition of (Castro, 2014) , seeks to present all the characteristics of bullying:
Violência moral intensa praticada por um agente (ou mais), em regra, o empregador ou superior hierárquico (assédio moral “vertical descendente”), porém, pode ser efetuado por subordinado (assédio moral “ascendente”), por colega de trabalho (assédio moral “horizontal”) ou por terceiro não vinculado à hierarquia empresarial. Os atos ofensivos devem ser dolosos ou simplesmente ter por efeito provocar um dano, não desejado, à dignidade ou integridade moral de uma ou de muitas vítimas no trabalho e ocorrem através de uma série de ações—em que cada uma das quais aparece isoladamente como lícita ou ilícita, embora na realidade seja simples fração da atuação total—unidas entre si pela sistematização das circunstancias que se repetem durante um período (normalmente de duração longa, lenta e gradual), que, no conjunto, constituem, por ficção, fato unitário e unidade jurídica, para todos os efeitos de Direito2. (p. 143)
In a true and authentic interpretation, the State Law of Rio de Janeiro no. 3.921 of 2002, presents the following definition of moral harassment, in its art. 2˚:
Art. 2˚—The employee, employee or employee’s exposure to humiliating or embarrassing situations, or any action, or word of gesture, that is practiced in a repetitive and prolonged manner, is considered harassment at work, for the purposes of this Law, during the working day of the organ or entity, and, by agent, delegate, supervisor or hierarchical supervisor or any representative who, in the exercise of his or her functions, abusing the authority conferred upon him, has the purpose or effect of achieving the self-esteem and self-determination of the subordinate , with damages to the work environment, to the services rendered to the public and to the own user, as well as, to hinder the evolution of the career or the functional stability of the constrained server.3
It is important to emphasize that as lege ferenda there is Bill no. 4.593/09 of the former federal deputy Nelson Goetten, which deals specifically with moral harassment in labor relations, which thus presents the concept of moral harassment:
Art. 1˚. (...).
§1˚ It is understood by harassment the repeated and abusive subjection of the employee to humiliating or degrading working conditions, implying a violation of their human dignity by the employer or his employees or a group of employees, as well as omission in the prevention and punishment for the occurrence of bullying.4
This classification is the most used and has by vertex the hierarchical degree of the stalking agent, being classified in descending vertical moral harassment; ascending vertical moral harassment; horizontal harassment; and mixed harassment.
In downright vertical bullying the stalker is the figure of the employer or person of superior hierarchical level with power of warrant in relation to the victimized worker. An asymmetrical relationship of power between the parties is evident.
This figure is also known as “bossing” (Cf, Castro, 2014: p. 54 ) and is the most common one to happen and to last, given the legal subordination of the labor contract and the economic dependence of the victim.5
(Soares & Duarte, 2014: p. 32) Alleged bullying is difficult to practice on the part of the subordinates in relation to the hierarchical superior (example of motivation—the boss is very young and manages subordinates many older, lack of experience and security, superior coming from another company).6 Generally, in this case, give the association for more than a subordinate to pursue and denigrate the figure of superior practicing insubordination, sarcasm, etc.
Horizontal harassment occurs when the mobilizing practice is perpetrated by people of the same hierarchical level, lacking hierarchical superiority, usually triggered by interpersonal conflicts or rivalries of a professional nature. In such cases, the omission or lack of interest of the company to suppress such practices is common.
Finally, there is still mixed harassment or “combined mobbing” which consists of combining vertical and horizontal harassment to denigrate the victimized worker.
It is said that in this practice the harassment begins by the higher authority and comes to contaminate the co-workers, authorizing, implicitly that they carry out the said practice in relation to the harassed worker. The reverse is also true. The bullying practice gives itself in the horizontal level, coming to configure the vertical harassment by omission of the hierarchical superiors.
In this classification the victim has an excessive focus, this being the reason for the criticism, since the fault is not of the harassed individual.
In first-degree harassment are passive behaviors to be absorbed by the worker and even dissociate himself from persecution in a way that does not entail exclusion from the work environment.
In the case of second-degree harassment, the worker can not get rid of the mobizers’ behavior, since there is an affectation about his health, and there are difficulties in returning to the work environment (Cf, Castro, 2014: p. 60 ).
Finally, third-degree harassment of the harassed person is completely impossible to return to the environment and work, besides the difficulty of rehabilitation of the worker himself in the face of developed physical and psychiatric illnesses.
The latter classification focuses on the motivation behind harassment, dividing itself into emotional mobbing and strategic mobbing (Cf, Castro, 2014: p. 61 ).
The emotional “mobbing” the harassing behaviors are in the face of interpersonal relations where it develops feelings of envy, competition, antipathy, discrimination in face of race, color, gender, etc.
The strategic mobbing refers to the planning and execution of schemes designed to lead the unwanted worker to resign, which would reduce the amount of labor with the termination of the employment contract (Martins, 2015: p. 30) .7
Exempli gratia of the practice of strategic mobbing has been in the banking system, in the not too distant past, where several banks with a view to reducing staffing began to pressure employees to join the voluntary resignation scheme, or overburden them with overwork and constant pressure to achieve goals unattainable with the purpose of which they resigned.
Prefacially, it is essential to point out the absence of a heteronomous source, that is, of specific labor legislation on moral harassment, which, as already explained, is a normative construction deriving from doctrine and jurisprudence.
There is, as a lege ferenda, in the Chamber of Deputies, Bill No. 4593/09, which deals with moral harassment in labor relations, and an earlier project, Bill No. 2369/03, which modifies provisions of the Consolidation of Labor Laws—CLT, to provide for the prohibition of the practice of bullying in labor relations.
There are two scattered federal laws that, in their normative synthesis, forbid loans to companies convicted of bullying.
Law No. 11.514 of 2007, which establishes guidelines for the preparation and execution of the 2008 Budget Law and provides other provisions in its art. 96, §1, IV the prohibition of the granting or renewal of loans or financings by official agencies institutions convicted of moral harassment.
Art. 96. (...)
§ 1˚ The granting or renewal of any loans or financing by the official development finance agencies is prohibited:
(...)
IV—institutions whose leaders are convicted of moral or sexual harassment, racism, child labor or slave labor.8
Law No. 11.948 of 2009 prohibits, in the same sense, granting or renewing any loans or financing by the National Development Bank to companies convicted of moral harassment.
Art. 4˚ The granting or renewal of any loans or financing by the BNDES to companies of the private initiative whose directors are condemned for moral or sexual harassment, racism, child labor, slave labor or crime against the environment is prohibited.9
In Regulatory Standard no. 17, which deals with ergonomics, in Annex II, which deals with the telemarketing/telemarketing work, there is a prohibition on the practice of bullying:
5.13. It is prohibited to use methods that cause moral harassment, fear or embarrassment, such as:
a) an abusive stimulus to competition between workers or groups/work teams;
b) demand that workers use, on a permanent or temporary basis, props, accessories, costumes and costumes for the purpose of punishment, promotion and propaganda;
c) public exposure of operators’ performance appraisals.10
Obviously, the possibility of an autonomous source arising from agreements and collective bargaining agreements with clauses with the aim of curbing the practice of bullying is not heard.
Apart from this context of the private sector, the existence of a specific rule to detail the form of moral harassment, or even, simply, prohibiting its practice, is found in state and municipal legislations that organize the proper regime of their respective servers or specific laws that prohibit the practice within the Public Administration.
The first State to be concerned about the issue of bullying was that of Rio de Janeiro and created Law No. 3.921 of 2002 to discipline the subject. In the municipal sphere, the Municipality of Iracemápolis, in the State of São Paulo, was the first to create a municipal law on the matter (Law No. 1.163/00).11
There is no legal provision for bullying in federal legislation for Public Administration as there is state and municipal laws.
Under the provisions of Law No. 8.112/90, which establishes the legal regime for civil servants of the Federal Government, municipalities and federal public foundations, the conduct of moral harassment could be subsumed in theory in the disciplinary infractions regarding the duty to maintain conduct compatible with administrative morality or urban treatment, both provided for in art. 116 of Law 8.112/90.12
It should also be pointed out that depending on the specific case, moral harassment can be a hypothesis of administrative impropriety (article 11 of Law 8.429/92), which had already been recognized by the Superior Court of Justice (STJ):
ADMINISTRATIVO. AÇÃO CIVIL PÚBLICA. IMPROBIDADE ADMINISTRATIVA. ASSÉDIO MORAL. VIOLAÇÃO DOS PRINCÍPIOS DA ADMINISTRAÇÃO PÚBLICA. ART. 11 DA LEI 8.429/1992. ENQUADRAMENTO. CONDUTA QUE EXTRAPOLA MERA IRREGULARIDADE. ELEMENTO SUBJETIVO. DOLO GENÉRICO.
1) O ilícito previsto no art. 11 da Lei 8.249/1992 dispensa a prova de dano, segundo a jurisprudência do STJ.
2) Não se enquadra como ofensa aos princípios da administração pública (art. 11 da LIA) a mera irregularidade, não revestida do elemento subjetivo convincente (dolo genérico).
3) O assédio moral, mais do que provocações no local de trabalho—sarcasmo, crítica, zombaria e trote -, é campanha de terror psicológico pela rejeição.
4) A prática de assédio moral enquadra-se na conduta prevista no art. 11, caput, da Lei de Improbidade Administrativa, em razão do evidente abuso de poder, desvio de finalidade e malferimento à impessoalidade, ao agir deliberadamente em prejuízo de alguém.
5) A Lei 8.429/1992 objetiva coibir, punir e/ou afastar da atividade pública os agentes que demonstrem caráter incompatível com a natureza da atividade desenvolvida.
6) Esse tipo de ato, para configurar-se como ato de improbidade exige a demonstração do elemento subjetivo, a título de dolo lato sensu ou genérico, presente na hipótese.
7) Recurso especial provido. (Our Griffins).13
In Law No. 4.593/09, it sets forth hypotheses (non-exhaustive role) of conduct that would subsume the figure of bullying:
Art. 2˚. (...).
1)—the exposure of the employee to the embarrassing situation, practiced in a repetitive or prolonged way;
2)—psychological torture, contempt and the forfeiture of information that is necessary for the good performance of the employee’s functions or useful for the performance of work;
3)—the employee’s exposure, to the detriment of his or her personal and professional development, to repeated and unfounded criticism that affects his physical and mental health, his honor and dignity, and his family;
4)—the appropriation of the credit of the employee’s work, with disrespect to the respective authorship;
5)—the determination of foreign assignments or activities that are incompatible with the employment contract or under unconditional terms and conditions;
6)—the obsolescence, by any means, of the evolution of the employee in the respective career;
7)—the occurrence of the hypotheses provided for in items ‘a’, ‘b’, ‘d’, ‘e’ and ‘g’, of art. 483 of the Consolidation of Labor Laws, approved by Decree-Law No. 5,452, dated May 1, 1943.14
The aforementioned bill proposes only moral harassment. So the key question is asked: what elements would constitute the phenomenon of bullying?
In order to be able to refer to workplace harassment, firstly, it is required that such abusive conduct should happen in relation to the work environment (dependencies of the workplace) or according to work.
Although there is no need to strictly confine oneself to the physical space of work, the causal link with the social reality of work is fundamental, under penalty of being limited to the circumscription of the business establishment, stratospheric way going beyond the labor context.
Bullying is defined by a set of behaviors (several acts), repeated over a certain period of time, which ultimately damages the worker’s personality rights.15
An isolated act can conform to a moral aggression with repercussion in the civil, criminal and labor sphere. However, it does not constitute harassment in the employment relationship.
The time lag in which this sum of acts would constitute bullying is mathematically quantified by some doctrinators, with fractions of time being ventilated for 6 months to 1 year.
It is not believed that obeying a fixed time frame is the best way to impute the subsumption of the labor fact as bullying. In reality it would be better to assess case by case and from the ventilated evidence determine whether to face a real labor moral harassment or actions of isolated moral aggression.
Another way of thinking would be to expose the protection of the worker’s dignity in various situations.
In this sense is the best labor jurisprudence that has glimpsed the bullying in the very short time span of the notice.
The controversy under which the harmful damaging result from the practice of moral harassment relates to the necessity or not to clinically assess the physical and psychological health dimension of the harassed worker (Martins, 2015: p. 21) .16
We map together with part of the doctrine that recognizes the necessity of the injury (damage) as essential for the configuration of moral harassment, not being necessary, however, the presence of damage to the health of the worker.
The conduct of mobbing can harm a plexus of fundamental rights of the worker, such as honor, freedom of expression, right to equal treatment, without discrimination, among others. That is, mere moral damage would suffice for the formatting of bullying.
In the sphere of law, attention must be paid to the damage to the protected legal right, which at present is identified as the moral integrity of the worker.
The level of severity of the damage when it affects the employee’s health (psychic damage) is important when it comes to quantifying civil liability for bullying, but not as a key element in its constitution (Castro, 2014: p. 129) .17
It is essential for the configuration of moral harassment to establish the malicious conduct of the harassing agent, and it is not necessary to admit responsibility for culpable practice.
The malicious element is a mobbing, since there is a need for repeated practice that damages the dignity and personality of the worker whose ultimate aim (“special purpose of action”) is the marginalization of the worker from the work environment, or the subjection to unfavorable conditions of work, among others (the role is not exhaustive).
In this context of moral harassment should be the question of malicious conduct in the same perspective of Criminal Law, being considered by Professor Zaffaroni & Pierangeli (2005) in the following terms: “(...) it is convenient to conceptualize it as the objective will to achieve the objective type , guided by the knowledge of the elements of this in the specific case”.18 (pp. 413-414)
Two elements are necessary to configure the intent: the intellectual (cognitive) and the volitional (emotional, intentional). That is, the harassing subject must be aware of the factual circumstances of the conduct he wishes to perpetrate (Greco, 2011: p. 183) ,19 as well as the will to want to accomplish it.
In the sphere of Criminal Law, fraud encompasses the following dimensions:
O conhecimento do dolo compreende a realização dos elementos descritivos e normativos, do nexo causal e do evento (delitos de lesão), da lesão ao bem jurídico dos elementos da autoria e da participação dos elementos objetivos das circunstâncias agravantes e atenuantes que supõem uma maior ou menor gravidade do injusto (tipo qualificado ou privilegiado) e dos elementos acidentais do tipo objetivo.20 (Prado, 2010: p. 320)
Filtration for the labor field is a matter for the harasser to have effective knowledge that his conduct causes damage to the personality dimension of the worker, in addition to wanting the said harmful result.
It is not ruled out that guilty conduct (carried out in the face of negligence, recklessness and malpractice) may cause harm to the personality of the worker, however, would denature the figure of moral harassment.
The indispensability of malicious conduct is so obvious that when criminalizing the crime of sexual harassment (below), which constitutes a form of moral harassment of the worker, it only predicted the type in its malicious form, not predicting how much to the guilty.21
It is also pointed out that in guilty conduct there is a purpose (usually lawful) (Zaffaroni & Pierangeli, 2005: p. 435) ,22 however, what matters in this conduct is whether or not the choice of the means by the agent to achieve the end violates the duty of care, where the right demanded the forecast of the result (Brandão, 2010: p. 182) .23
In such a way, realize that the dogmatic structure of the guilty conduct is exactly the violation of the duty of care, where the choice of the means to reach the end of the conduct is fundamental to attest to the duty of care.
From this explanation of the subjective element guilt that integrates the conduct to envisage that it could compose the systematic practice of violation of the dignity of the worker with corresponding moral damage.
A consensus on the need for a certain degree of intensity in violence perpetrated in a way that does not constitute an insignificant damage, easily absorbed by the worker, due to the normal conflicts in the labor negotiations.
In sum it is pointed out as the central gravity in the violence to the point of causing damage valued as not insignificant.
To attest that this level and intensity is not analyzed in regard to each conduct alone, but rather the set of actions (in its entirety) perpetrated by the stalker.
As a result of moral harassment, whether vertical or horizontal, can terminate the employment contract.
In the case of vertical harassment this would entail the indirect termination of the employment contract, protecting all the labor rights of the harassed employee, according to a hypothesis of dismissal without just cause.
The normative basis for this is found in art. 483 from CLT:
Art. 483—The employee may consider rescinded the contract and claim the due indemnity when:
a) services superior to their forces are required, prohibited by law, contrary to good customs, or unrelated to the contract;
b) is treated by the employer or his superiors with excessive rigor;
c) to run a manifest danger of considerable harm;
d) failure to comply with the employer’s obligations;
e) to practice the employer or his agents, against him or his family, an act detrimental to honor and good reputation;
f) the employer or his or her representatives physically offend him, except in the case of self-defense, his own or another’s;
g) the employer reduces his or her work, this being by piece or task, in order to significantly affect the importance of wages.24 (Our Griffins)
It points out that bullying, by itself, in a general way, is already subsumed under the hypothesis of “not complying with the employer the obligations of the contract”. However, in the present case, there will be situations in which more than one item of art. 483 of CLT as “practicing the employer or his agents, against him or persons of his family, act injurious to honor and good fame”; or to depend on the case “to run a manifest danger of considerable harm”.
The pattern of indirect termination arising from harassment is quietly recognized within the jurisprudence:
RESCISÃO INDIRETA E ASSÉDIO MORAL: A rescisão indireta do contrato laboral constitui falta máxima cometida pelo patrão, de modo a tornar insustentável a manutenção do contrato de trabalho. No caso em apreço, o assédio moral evidenciado constitui motivo para a configuração da rescisão indireta do contrato de trabalho na forma tipificada no septuagenário artigo 483 consolidado de 1943. Recurso ordinário não provido.25
Otherwise, in the case of horizontal harassment, it may lead to dismissal for just cause of the harassing employee, since bullying could be framed as conduct incontinence or malpractice; act of indiscipline; act injurious to the honor or good reputation practiced in the service against any person, or physical offenses, under the same conditions.
Art. 482—The employer is entitled to terminate the employment contract as a just cause:
a) act of improbity;
b) conduct incontinence or poor procedure;
c) habitual negotiation on his own account or on his own behalf without permission of the employer, and when it constitutes an act of competition to the company to which the employee works, or is harmful to the service;
d) criminal conviction of the employee, which is final and unappealable, if there has been no suspension of execution of the sentence;
e) depreciation in the performance of their functions;
f) habitual drunkenness or in service;
g) breach of company secrecy;
h) act of indiscipline or insubordination;
i) abandonment of employment;
j) act prejudicial to the honor or good reputation practiced in the service against any person, or physical offenses, under the same conditions, except in case of self-defense, own or others;
k) act prejudicial to the honor or good reputation or physical offenses committed against the employer and hierarchical superiors, except in case of self-defense, own or others;
l) constant practice of gambling.26 (Our Griffins)
Apart from what happens with the figure of bullying, sexual harassment is criminalized and has been inserted into the Penal Code by Law 10.244/01.
The criminal type of sexual harassment is thus prescribed in art. 216-A of the Penal Code:
Art. 216-A. To embarrass someone with the purpose of gaining advantage or sexual favor, prevailing the agent of his status as superior or inherent in the pursuit of employment, position or function.
Penalty—detention, from 1 (one) to 2 (two) years.27
Note that the core of the type is the conduct of embarrassment, being this without violence or serious threat, which would denature the crime of sexual harassment to the sphere of another criminal type.
Sexual harassment is, in fact, a form of moral harassment at work, with the sexual element being the aggressor’s special purpose (the active subject of the offense), resulting in repercussions not only on the labor and civil sphere but also on in the criminal.
By the prescription of elements of the criminal type, in its final part “(...) prevailing the agent of his status as superior or inherent inherent in the exercise of employment, position or function,” it is noted that the only way to sexual harassment that would constitute a crime would be that perpetrated in a descending (vertical descending moral harassment).
That is, horizontal sexual harassment, practiced by coworkers, or in the ascending modality, of the subordinate in relation to the hierarchical superior, constitute, as previously seen, in forms of moral harassment, but not in a criminal type.
Sexual harassment can occur both in the public sphere of work and in the private sector. The existing controversy, although not much more practical, refers to the fact that jurists interpret that the normative element of the type “hierarchical superior... inherent in the exercise of employment, position or function” was to be governed by the principle of hierarchy, while the “(...) inherent in the exercise of employment, position or function” would relate to the private sphere of employment (Greco, 2011: p. 518) (Nucci, 2015: p. 1219 ) (Cf. Masson, 2013: pp. 47-48 ).28
In a brief survey on the subject, in the context of the jurisprudence,29 it argues that the hierarchical superiority element would also cover the labor field and not only of the Public Administration (Bitencourt, 2010: p. 81) , (Franco & Stoco, 2007: pp. 1061-1062) .30 as in the judgment of the Court of Justice of Rio Grande do Sul that recognized sexual harassment in the case of domestic servant:
APELAÇÃO CRIMINAL. CRIMES SEXUAIS. ASSÉDIO SEXUAL MAJORADO. MATERIALIDADE E AUTORIA.
Não prevalece a alegação de insuficiência de provas relativamente à materialidade e autoria do crime de assédio sexual imputado ao réu, tendo em vista o robusto e concludente conjunto probatório coligido aos autos, de onde se destaca o relato da vítima, que demonstrou que o réu, aproveitando-se da sua superioridade hierárquica, pois que à época do fato era o empregador da ofendida, agarrou-a contra a sua vontade tentando lhe dar um beijo. DOSIMETRIA DA PENA. Mantido o apenamento aplicado na sentença, porquanto evidenciado que está em sintonia com os critérios de necessidade e suficiência para a reprovação e prevenção do crime. APELAÇÃO A QUE SE NEGA PROVIMENTO.31
In view of this we can make some assumptions: 1) every sexual harassment necessarily characterizes a moral harassment; 2) not all sexual harassment would be a crime, but only that practiced in a vertical descending relation.
We agree that the doctrine that questions the need to create the criminal type of sexual harassment, since the matter is better dealt with by other branches of law (labor law, civil law, administrative law), and Criminal Law should be the last ratio, in the dictates of the principle of minimum intervention, (Masson, 2013: pp. 45-46) 32 thus forming another example of symbolic criminal law, whose criminal infraction, pragmatically, will end within the special criminal courts, or with a conditional suspension of the process (minimum sentence of up to one year),33 or with a criminal transaction (maximum penalty of up to 2 years),34 since they face a crime of less offensive potential.
It is in this same sense the harsh criticism of (NUCCI, 2015) regarding the criminal type of sexual harassment:
(...) cremos ser totalmente inadequada e inoportuna a criação do delito de assédio sexual no Brasil. Primeiramente, deve-se ressaltar que são poucos os casos noticiados de importunações graves, no cenário das relações de trabalho, que não forma devidamente solucionados, com justiça, nas esferas cível e trabalhista—ou mesmo administrativa, quando se cuidar de funcionário público. Em segundo lugar, é preciso considerar que, para o nascimento de uma nova figura típica incriminadora, seria indispensável levar em conta o conceito material de crime, insto é, o fiel sentimento popular de que uma conduta merecesse ser sancionada com uma pena, o que não ocorre. Trata-se de um delito natimorto, sem qualquer utilidade pública, o que p tempo irá demonstrar. Não se desconhece que o assédio sexual é uma realidade em todo o mundo, merecendo punição, além de ser nitidamente ilícito, antiético e imoral, mas não se trata de assunto para o direito penal. Podemos insistir que, em vez de descriminalização, observamos o fenômeno inverso, consistente no surgimento de maus uma figura incriminadora, desconsiderando-se o ser o direito penal a ultima ratio, ou seja, a última cartada do legislador para a punição de condutas verdadeiramente ‘serias e comprometedoras da tranquilidade social. Não é o caso do assédio sexual, fruto da importação de normas de outros sistemas legislativo, inadequados à realidade brasileira. Enfim, melhor teria sido a previsão, se fosse o caso, de maior rigidez na punição de empregadores e funcionários, nos campos civil, trabalhista e administrativo, do que ter criado um outro tipo penal, cuja margem de aplicação será diminuta, quando não for geradora de erros judiciários consideráveis, até mesmo porque a prova de uma existência será extremamente complexa. (...). Em suma, a solução legislativa para os casos de assédio sexual, tipificando-a, não foi acertada, em nosso entender.35 (pp. 1217-1218)
From Proposed Law No. 5.971/01Of particular note is Bill No. 5,971/01 of the former federal deputy Inácio Arruda and others with the purpose of characterizing the conduct of bullying, adding art. 203-A in the Criminal Code with the name iures of “moral coercion in the workplace”:
Art. 203-A. To coerce morally employed in the work environment, through acts or expressions that aim to achieve dignity or create humiliating or degrading working conditions, abusing the authority conferred by the hierarchical position.
Penalty—detention, from 1 (one) to 2 (two) years and fine.36
The same considerations presented regarding the criminalization of sexual harassment and the normative vector of the minimum intervention of Criminal Law applies the proposal of criminalization of moral harassment. (Carvalho & Carvalho, 2006: pp. 2018-2019) 37
caring for a civil servant. Secondly, it is necessary to consider that, for the birth of a new incriminating typical figure, it would be indispensable to take into account the material concept of crime, I urge, the faithful popular feeling that a conduct deserves to be sanctioned with a sentence. does not occur. It is a crime stillborn, without any public utility, which time will demonstrate. It is not unknown that sexual harassment is a reality around the world, deserving punishment, besides being clearly illicit, unethical and immoral, but it is not a matter for criminal law. We can insist that, instead of decriminalization, we observe the inverse phenomenon, consisting in the appearance of bad an incriminating figure, disregarding the criminal law being the ultima ratio, that is, the last lawmaker's suit for the punishment of truly ‘serious and compromising of social tranquility. It is not the case of sexual harassment, the result of the importation of norms from other legislative systems, inadequate to the Brazilian reality. Finally, it would have been better, if it were the case, to have been more rigid in the punishment of employers and civil servants in the civil, labor and administrative fields than to have created another type of criminal offense. causing considerable miscarriages of justice, even because the proof of existence will be extremely complex. (...). In short, the legislative solution to cases of sexual harassment, typifying it, was not correct, in my view”.
Finally, it is important to emphasize that although we do not agree with the creation of a specific criminal type in relation to bullying, the various harassing behaviors end up slipping into several existing criminal types such as libel, defamation, threat, illegal embarrassment, violation of freedom of work, etc.
Labor harassment, although not a new phenomenon, has been highlighted by its increasingly consistent recognition in the field of labor claims, following Constitutional Amendment 45/04.
The definition of labor mobbing does not find support in any heteronomous source within the Brazilian legal system, at least in the sphere of private relations, which has led to several divergences as to the elements and limits of the characterization of occupational moral harassment which puts the mentioned phenomenon in a pattern of certain legal insecurity.
We understand that the figure of moral harassment in the workplace is set when necessarily present the malicious conduct that results in harmful to the dignity of the worker, being related to the labor context, in a repeated and systemic way, being perpetrated with a certain intensity of violence.
In the face of a vertical harassment, this would entail the indirect termination of the employment contract. Already when horizontal harassment can lead to dismissal for just cause of the harassing employee seen as being framed as conduct incontinence or bad procedure; act of indiscipline; act injurious to the honor or good reputation practiced in the service against any person, or physical offenses, under the same conditions.
Regarding the distinction between bullying and sexual harassment, the following premises are taken: 1) every sexual harassment necessarily characterizes a moral harassment; 2) not all sexual harassment would be a crime, but only that practiced in a vertical descending relation.
At first, we do not agree with the bill that criminalizes the conduct of bullying as a crime, since Criminal Law is the last ratio, in the dictates of the principle of minimum intervention, thus configuring another example of symbolic criminal law, punishable by the criminal courts, either with a conditional suspension of the process (minimum sentence of up to one year), or with a criminal transaction (maximum penalty of up to 2 years), as he faces a criminal offense, less offensive potential.
The updating of the CLT is pressing in order to create a proper chapter on the figure of bullying so that the legal uncertainty surrounding this matter is remedied, which would allow a better normative basis with the object to combat this odious practice, inconceivable in a so-called global law that has the primacy of the dignity of the human person as the maximum vector.
Nelson, R. A. R. R., de Oliveira Rocha Teixeira, W., Fernandes, R. L., Alves, F. G., de Bessa da Silva, T., Galvão, T. M. N., & Amorim, M. G. (2019). Labor Harassment in the Brazilian Legal System. Beijing Law Review, 10, 487-504. https://doi.org/10.4236/blr.2019.103030