Os meios probatórios do assédio sexual no ambiente de trabalho: análise à luz da teoria dinâmica do ônus da prova

Abstract

The present research seeks to analyze the procedural instrument of the dynamic reversal of the burden of proof in the Labor Court, introduced by Law 13.467/2017, more specifically regarding its instrumentalization for the benefit of women victims of sexual harassment in the workplace. To this end, the conceptualization of sexual harassment proposed through Resolution No. 351 of 10/28/2020, of the CNJ, was used, aiming at an analysis directed at the definition usually used by the judging bodies of the labor field. In this sense, the monograph was concerned with answering: can the application of the dynamic theory of the burden of proof, in cases of sexual harassment in the workplace, be considered an important instrument to combat sexual violence against women workers? With this, certain forms of approach were established. Initially, the research took care of defining the passive subject of sexual harassment in the work environment, which by its nature, is directed at women, as well as analyzing the psychological impacts experienced by them. The employer's responsibility was analyzed in different scenarios in light of the supervisory power in cases of horizontal and vertical sexual harassment. As for the procedural analysis, the insufficiency of means of evidence usually admitted in the Labor Court, necessary to prove the constitutive facts of the claimant in cases of sexual harassment, was established. Flagrantly, the victim of sexual harassment in the workplace does not have any ability to constitute evidence that mostly remains in the possession of the employer. In this sense, through the use of the procedural instrument of the reversal of the burden of proof (art. 818, §1, of the CLT), which is based on the procedural aptitude of the party, it is possible to allocate the burden of proof in a different way than that usually established . Therefore, the undoubted importance of the procedural instrument was established, which proves to be an important tool that aims at a fairer and more effective protection