Workplace Harassment: Everything You Need to Know as a Lawyer
If you are a professional working in labor law, you will sometimes encounter cases of workplace harassment. In this article, you will learn everything about workplace harassment to give you more confidence when providing legal support to your client.
What is workplace harassment?
Consulting specialized doctrine, Marie France Hirigoyen, recognized worldwide for her studies and publications on the subject, considers moral harassment to be "any and all abusive conduct manifesting itself primarily through behaviors, words, acts, gestures, writings that may cause harm to the personality, dignity or physical or psychological integrity of a person, endanger their work or degrade the work environment" (HIRIGOYEN, 2000, p. 20).
Furthermore, the Policy for the Prevention and Combat of Workplace Harassment at the Superior Labor Court (TST) also defines workplace harassment, as it is a concept that is even closer to the legal world. In this definition, workplace harassment is "the exposure of individuals to humiliating and embarrassing situations in the workplace, repeatedly and over a prolonged period, in the course of their work. It is conduct that harms the dignity and integrity of the individual, putting their health at risk and damaging the work environment."
Therefore, we have extracted a three-part characterization for workplace harassment: abusive conduct (not ethically expected), the performance of this harassment through behavior (words, actions, gestures that reinforce the basic characteristics of workplace harassment and visibility), and the temporal factor (repeatedly, over a prolonged period).
Here, as a lawyer, you must be very careful about two things. First, workplace harassment must be visible. This is a substantial problem because the client's mere imagination that someone is persecuting them at work is not harassment. If the behavior doesn't exist, there is no real persecution. Therefore, action is essential: "behaviors, words, acts, gestures, writings".
The second point to consider is the temporal factor. An isolated situation may cause moral harm, but it does not necessarily constitute workplace harassment. To be characterized as workplace harassment, the aggression must be repeated over a period of time.
Now that we've defined that, let's move on to the specific cases that might come to your office.
What can be characterized as workplace harassment?
Workplace harassment is violence that destabilizes an individual emotionally and professionally, as exemplified in the Prevention of Workplace Harassment Guide :
"Removing the employee's autonomy or constantly questioning their decisions;
Overloading the employee with new tasks or removing work that they were usually responsible for, causing feelings of uselessness and incompetence;
Ignoring the presence of the harassed person, addressing only the other employees;
Assigning humiliating tasks;
To shout or speak disrespectfully;
Spreading rumors or disseminating offensive gossip about the employee;
Posting derogatory messages in social media groups;
Avoid direct communication, contacting the victim only via email, notes, third parties, and other forms of indirect communication;
Physically isolate the employee to prevent communication with other colleagues;
To disregard or unjustifiably mock the victim's opinions;
Removing positions and functions without just cause;
To impose personalized working conditions and rules, different from those required of other professionals;
Delegating tasks that are impossible to complete or setting unrealistic deadlines for finishing a project;
Manipulating information by failing to provide it with sufficient advance notice to allow the employee to perform their tasks;
Excessive vigilance;
Limit the number of times an employee goes to the bathroom and monitor how long they stay there;
To warn arbitrarily; and
"To encourage one colleague to control another, creating a control structure outside the hierarchical context, in order to generate distrust and prevent solidarity among colleagues."
What are the forms of workplace harassment?
Workplace harassment can be classified according to its scope. The first type, interpersonal harassment, occurs in a personal and direct manner, with the aim of harming or eliminating professionals in their relationships with the team. The second type, institutional harassment, happens when the organization itself encourages harassment through an institutional culture of humiliation and control.
Regarding its type, workplace harassment manifests itself in three different ways:
Vertical workplace harassment
Vertical workplace harassment occurs between people at different levels, that is, between bosses and subordinates, and can be further divided into two types:
The first, top-down harassment, is characterized by pressure from the boss on subordinates;
The second, upward, is harassment against the boss by his subordinates;
Horizontal workplace harassment
Horizontal workplace harassment occurs between people who belong to the same hierarchical level, and usually takes place in scenarios of excessive competition between colleagues.
Mixed workplace harassment
Mixed workplace harassment includes the combination of both vertical and horizontal forms of harassment.
It is important to highlight for legal professionals that there is still no consensus on the classification of forms of workplace harassment, much less an exhaustive list of workplace harassment, but the position disseminated by the TST itself regarding the existing forms of this issue has been presented above.
How to prove workplace harassment?
This will be one of the most important parts of the entire procedure. A good suggestion is to create a step-by-step plan with your client: first, ask them to collect evidence of workplace harassment, including location, date, time, and a list of names of people who witnessed the behavior. Evidence of workplace harassment is usually proven through pure testimony.
Secondly, proof can also be provided by supplying documents (e.g., emails) or recordings that demonstrate the harasser's behavior. In the latter case, regarding recordings, the lawyer should be very careful, as there is case law that considers recordings (via cell phone or real-time recording) as legal evidence, but some courts may contradict this.
Finally, the victim can seek help from a professional psychologist who, through therapeutic analysis, can provide a psychological report that substantiates the harassment suffered by the individual.
What is the amount of compensation for workplace harassment?
The amount of compensation is not fixed; it will vary according to the judge's understanding in the specific case. However, in practice, for large companies, we have seen that the amount of compensation for moral harassment ranges from R$ 10.000,00 to R$ 50.000,00, and for small and medium-sized companies it ranges from R$ 1.000,00 to R$ 10.000,00.
Legal basis and foundation regarding workplace harassment.
As a lawyer, you can use certain arguments to further strengthen your line of reasoning or your petition in a specific case, such as:
The Federal Constitution, in its article 3, IV: “The fundamental objectives of the Federative Republic of Brazil are (…) IV – to promote the well-being of all, without prejudice based on origin, race, sex, color, age, and any other forms of discrimination;
Law 9.029/95: "Article 1. It is prohibited to adopt any discriminatory and restrictive practice for the purpose of accessing or maintaining employment, based on sex, origin, race, color, marital status, family situation, disability, professional rehabilitation, age, among others, except in cases of protection for children and adolescents as provided for in Item XXXIII of Article 7 of the Federal Constitution";
Case Law: “Moral harassment can be defined as abuse practiced in the workplace, in an unethical, intentional and malicious manner, repeated over time, unrelated to sexual or racial connotations (which constitute hypotheses with specific definitions, namely, sexual harassment and racism, respectively), with the intent to constrain the worker, through hostile actions practiced by the employer, hierarchical superior or co-worker, which cause intimidation, humiliation, discredit and isolation, causing the victim a state of physical, psychological and social harm. Its nature is predominantly psychological, always violating the dignity of the human person.” (TRT-2, 1001119-20.2017.5.02.0028, Rel. RICARDO ARTUR COSTA E TRIGUEIROS – 4th Chamber – DOE 05/06/2018)”;
In light of the above, it is clear that understanding the nuances of workplace harassment is extremely important for legal practice, since people can be victims of this type of workplace abuse on a daily basis. Therefore, a thorough understanding of this area of Labor Law gives lawyers much more confidence to make effective arguments that respect the law, achieve success in specific cases, and build authority in their practice.
