CHAPTER 7

• Jurisdiction: United States

CHAPTER 7

Brazilian Sexual Harassment Law, the #MeToo Movement, and the Challenge of Pushing the Future Away from the Past of Race, Class, and Social Exclusion

Denise Neves Abade¹

Say it say it say it
Tell it like it is
What breaks your heart
What keeps you awake at night
What makes you want to breakdown and cry
But say you'll never turn your back
Say you'll never harden to the world
Say you'll never try to still the rhythms in your breast
Say you'll never look at the evil among us and try to forget
Say you'll tell it like it is

—"Tell It Like It Is" (a song by Tracy Chapman)²

Introduction

The sex scandal surrounding Hollywood producer Harvey Weinstein, which broke in October 2017, has spread the #MeToo campaign to the world, with famous actresses and anonymous women alike revealing that they have been abused in the past. The hashtag #MeToo gains momentum every day.

At first, the #MeToo movement resulted in the denunciation of an impressive number of powerful men accused of committing sexual abuse in all professional sectors. Many of them saw their careers take a dramatic downturn, seemingly overnight.

But with the growth of the movement, women took additional action, relying on one another to prosecute their abusers and expand their fight against all kinds of discrimination, including wage inequality.³

In Brazil, many artists named the violence against women using the hashtag #EuTambém. Brazilian artists like Monica Martelli, Marina Person, Deborah Secco, Bruna Barros, Luka, and Alice Santana showed their support by telling their own stories and pointing to the growing need to talk about sexual harassment.⁴

In actuality, Brazilian women's empowerment preceded #MeToo and had inspired reforms in national laws.

In 2015, the Brazilian social media campaign #PrimeiroAssedio ("first harassment") spread to other countries, with women encouraged to report when they experienced sexual harassment for the first time. The hashtag, meaning in English, "my first harassment," was a sly send-up of a once-popular advertisement for trainer bras. More than 80,000 women responded.

In early 2017, months before the Harvey Weinstein case, a leading actor in Brazilian soap operas, Jose Mayer, was in the spotlight for reasons other than his acting when one of his studio's custom designers, Susllem Tonani, accused him of harassment. Scores of celebrities rallied to her defense in T-shirts emblazoned with "Mexeu com uma, mexeu com todas" ("Mess with one woman, you mess with us all").

The Mayer case had great repercussions in the national media. The newspaper Folha de São Paulo released a letter using the hashtag #agoraéquesãoelas,⁵ in which Tonani accused the actor of sexual abuse. At first, the actor denied any involvement in the incident, but later issued a public apology and said his actions were wrong. Soon, there were numerous comments, moral judgments, opinions, and controversies. Many supported the designer and some the actor.

Despite these advances and the boldness of protests, protecting women is still fraught with systemic barriers and victims push back at considerable risk.

If, on the one hand, denunciations are not new, on the other, the effects of the public denunciations are novel. Through internet campaigns, women have gained power that they have never had at any other time in history.

Words mobilize, foster comfort and empathy, and promote change. But we have to recognize that in Brazil, empowerment against sexual harassment is a privilege of a minority armed with information, aware of their rights, who discovered how to arm themselves, and know that they will have protection if they do not accept this type of violence.

The question is how to create a world where even the most vulnerable and under-resourced, with a less profound understanding of the subordination of women, can protect themselves. Those afraid of judgment, harassment, losing their jobs or reputations: the vast majority of Brazilians.

The current movement is promising, but it gives us the false notion that societal change has come for all. It has not. There is still a gulf between the awareness of the minority and the reconstruction necessary to push the future away from the past.

As will be seen in this chapter, for more than twenty years, Brazilian law has steadily reinforced measures to eliminate discrimination against women and against sexual harassment. But in a country with a predominantly macho culture, there are still many obstacles to overcome.

First, education that promotes gender equality is needed so this transformation can be extended to the next generation. Second, profound change in the culture of business is essential. Currently, companies favor men to the detriment of women in leadership positions, and human resources departments continue to ignore harassment as if it were not a chronic problem.

We will see that at least in theory the legislative evolution of Brazil regarding sexual harassment is undeniable. New laws have empowered the government to protect women, but enforcement is still a big problem.

Despite the deeper understanding of the universality of human rights,⁶ through the recognition of the difference as an instrument of inclusion and the consequent deepening of its understanding in theoretical and practical aspects, hegemonic human rights practices continue to marginalize women and blacks in certain situations. This occurs either because they are based on a one-dimensional, white, and androcentric perspective, or because they presuppose the manipulation of homogeneous and mutually exclusive categories, or because of a vertical construction, constituted from above and below. Therefore, there is an urgent need to implement policies that adopt, prevent, and combat these different intensities of rights violations based on the paradigm of intersectional analysis, which recognizes that it is part of the concept of universality of human rights and equality to recognize the right to difference and diversity, with the development of mechanisms to protect the most vulnerable groups.⁷

The Italian legal philosopher and journalist Norberto Bobbio said that there are three main sources of inequality: ethnic, sexual and social: "Any overcoming of this or that discrimination is interpreted as a stage of the progress of civilization. The three main sources of inequality among men: race (or, more generally, participation in an ethnic or national group), sex, and social class."⁸ Viewed in these terms, it is going to take some time until Brazil reaches an adequate level of "civilization." As is true in other countries, the struggle against the "macho" culture is a work in progress.

The Beginning: Historical Development of Gender Discrimination Law in Brazil That Leads to Sexual Harassment Law

According to the United Nations General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), sexual harassment includes "such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment."⁹ The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women states that sexual harassment is a kind of violence against women.¹⁰

Sexual harassment can also be understood to be a form of sexual discrimination, considering that, under Brazilian law, discrimination is any distinction, exclusion, restriction, or preference based on sex, gender, sexual orientation, disability, religious, political, or philosophical belief, race, color, descent, national, or ethnic origin, the purpose of which is to annul or restrict the recognition, enjoyment, or exercise, under equal conditions, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public or private life.¹¹

The first steps taken by Brazil to empower women and protect them against workplace discrimination was Law no. 9,029, in 1995.¹² Law 9,029/1995 forbids discrimination (in an employment setting) because of sex, national origin, race, color, marital status, familial situation, disability or age, among others. In addition to prohibiting the adoption of any discriminatory and restrictive practice for access to (or maintenance of ) employment relationships on the basis of sex, origin, race, color, marital status, family status, disability, occupational rehabilitation or age, the act established that discriminatory practices against pregnant women constitute a crime.¹³ This was the first Brazilian legal anti-harassment policy.

Shortly thereafter, to respond to the Global Action Platform of the Beijing Fourth World Conference on Women, the Brazilian Congress included a gender quota mechanism in Act no. 9,100, of September 29, 1995, enacting rules for the implementation of regional legislative elections. The platform recommended affirmative action acceleration to reduce legislative gender imbalances—until then women were almost entirely excluded from the centers of political power. Law no. 9,100 established that at least 20 percent of the list of each party or coalition should be filled by women candidates. Two years later, Act no. 9,504 established quotas for nominations also for federal proportional elections, increasing the stipulated quota to 30 percent. This law will take time to generate results, but it shows the importance of the subject.

An important legal framework for combating gender discrimination in Brazil is the so-called "Maria da Penha Act," enacted in 2006 to combat domestic violence in Brazil. After the Maria da Penha Act became law...