A Crisis Hidden in Plain Sight

Data from the Brazilian labour judiciary shows that institutional workplace abuse is an escalating structural crisis: between 2020 and 2024, the Labour Court system received 458,164 new moral harassment cases, with numbers growing 28% in 2024 alone. Concurrently, the SmartLab Occupational Health Observatory, coordinated by the Labour Public Ministry (MPT) and International Labour Organisation (ILO), recorded a 134% increase in temporary incapacity benefits for workplace mental health disorders in two years, rising from 201,000 cases in 2022 to 472,000 in 2024. Notably, 63.46% of these benefits were granted to women. Globally, ILO reports that roughly one in five economically active individuals have faced workplace violence or harassment. These numbers constitute the empirical footprint of a systemic human rights violation.

This post argues that human rights due diligence (HRDD) frameworks have yet to fully capture the specific dimensions of institutional moral harassment (IMH), defined as a set of systemic, diffuse, and collectively inflicted abusive management practices. Two recent Brazilian regulatory instruments, Law No. 14,457/2022 (CIPA+A) and the updated Regulatory Norm No. 1 (NR1), offer a concrete normative opportunity to challenge this omission, including by reconfiguring the evidentiary burden in corporate accountability for harassment-related illness.

Why Due Diligence Frameworks Routinely Overlook Institutional Harassment

The UN Guiding Principles on Business and Human Rights (UNGPs) establish that corporate enterprises must respect human rights through continuous processes designed to identify, prevent, and mitigate adverse impacts. In practice, corporate risk assessment heavily reflects existing power hierarchies and the political economy of accountability. Violations that produce visible physical outcomes or expose companies to immediate, quantifiable legal liabilities are readily integrated into internal risk matrices. Violations that are diffuse, cumulative, and experienced primarily by structurally vulnerable workers remain systematically obscured. Institutional moral harassment belongs firmly to this second category.

Empirical research conducted by the PUCPR Human Rights Clinic in partnership with the FGV Centre for Human Rights and Business demonstrates this gap concretely: of the 30 largest companies operating in Brazil, only seven maintained formal mechanisms for identifying human rights risks, only three provided any indication of how those mechanisms were implemented. This was a documentary analysis of public corporate disclosures; the actual state of internal practice is likely to be even more limited. Standard HRDD frequently operates as a performative compliance exercise: a tick-box methodology that protects corporate reputational interests while failing to integrate the complex, qualitative experiences of rights-holders.

This operational failure is compounded by the systematic invisibility of harassment as a gendered and racialised phenomenon. Intersectional analysis demonstrates that Black women workers are simultaneously more exposed to systemic institutional abuse and less likely to have their grievances properly investigated. As Fielitz, Fachin and Pamplona (2024) observe in the context of the EU Corporate Sustainability Due Diligence Directive, meaningful stakeholder engagement — which genuine HRDD requires — cannot be reduced to informing workers of policies that have already been decided.

The Regulatory Evolution of CIPA+A and NR1

Brazil’s recent regulatory reforms respond normatively to these corporate accountability gaps. CIPA+A expands the statutory mandate of the Internal Commission for Accident Prevention (CIPA) to encompass harassment prevention, mandating confidential reporting mechanisms, annual training on diversity and harassment, and structured internal protocols for evaluating complaints. When interpreted alongside ILO Convention 190, this national statute establishes a direct bridge between domestic labour law and the international BHR agenda.

NR1, updated by Portaria MTE 1.419/2024 and extended by Portaria MTE 765/2025, entered into force on 26 May 2026, with inspection and penalties now applicable. It introduces a fundamental conceptual shift: by requiring companies to incorporate psychosocial risks, including moral and sexual harassment, within their formal Occupational Risk Management Programmes, the norm repositions workplace psychological distress from an individual pathology to a systemic institutional risk that companies are legally obligated to map, assess, and control.

Because NR1 integrates psychosocial risks into the same legal-institutional structure as physical hazards, where employers must already prove they provided adequate safety infrastructure, corporate resistance has already mobilised. In June 2026, a São Paulo federal court granted an injunction obtained by FIESP and 131 employer unions suspending enforcement of the psychosocial risk provisions against approximately 130,000 represented companies, on the grounds that psychosocial risks lack sufficiently objective criteria for measurement and sanction. This legal challenge is analytically significant beyond its immediate procedural effects: the argument that psychological harm is too diffuse and immeasurable to regulate is precisely the structural filter that renders IMH invisible within HRDD frameworks. The resistance to NR1 and the invisibility of IMH in corporate accountability agendas share the same epistemological logic, and that logic has real consequences for the workers whose suffering it renders ungovernable.

A New Legal Hypothesis: The Burden of Proof

The convergence of NR1 and emerging judicial guidelines opens an important path for strategic litigation. When a worker seeks damages for burnout caused by institutional harassment, standard procedural law requires them to establish a causal link between workplace conditions and their illness. In practice, this forces the claimant to submit their complete psychiatric history to judicial scrutiny. The implicit question the evidentiary process asks is: prove that you were not already mentally ill before this employment relationship began. Feminist legal scholars rightly compare this to requiring a sexual violence victim to prove their prior sexual behaviour. The burden falls on the most vulnerable party at the most vulnerable moment of their life, and it falls disproportionately on Black women workers and those in precarious employment, who are least likely to have continuous access to the private psychiatric records that courts require.

NR1 disrupts this framework. While it does not explicitly invert the burden of proof, which would require legislative change, it creates the material conditions for courts to apply dynamic burden-shifting mechanisms already available under Brazilian procedural law. A company’s documented failure to map and mitigate psychosocial risks as required by its risk management programme becomes objective evidence of corporate negligence. The judicial inquiry shifts from did this person develop the illness because of harassment? to did the company fulfil its legal obligation to prevent psychosocial harm?

The TST/CSJT Protocol for Anti-Discriminatory, Intersectional, and Inclusive Judgment (2024) provides the methodological framework for judges to employ these procedural shifts through a gender-sensitive lens. Grounded in CEDAW Recommendation No. 33, which urges the re-evaluation of traditional burden of proof rules in cases involving women’s rights, NR1 and the Protocol together constitute a new normative architecture, not yet consolidated in jurisprudence, but real and operative.

Corporate Coherence and its Litigation Conduct

This distinction between CSR and BHR, between performing human rights commitment and operationalising it, has a concrete and underexplored implication: a company’s HRDD obligations do not end when litigation begins. An enterprise that publicly commits to HRDD, maps psychosocial risks in its risk management programme, and presents itself as rights-holder centred, and then, in court, demands a worker’s complete psychiatric history to discredit someone’s claim, is acting incoherently in both legal and BHR terms. Under Brazilian civil law, this contradiction is cognisable under the principle of venire contra factum proprium — the prohibition on acting against one’s own prior conduct. Within the BHR framework, as Fachin and Pamplona (2021) identify, this behaviour reflects a fundamental confusion between superficial corporate social responsibility and genuine human rights compliance: performing ethical commitments externally whilst operating on internal risk-mitigation logic.

The coherence argument has an equally important constructive dimension. Genuine NR1 compliance actually provides companies with a legitimate, rights-respecting legal defence. Employers can demonstrate the organisational conditions maintained, the structural risks mitigated, and the preventive measures implemented, without requiring the worker to expose their psychiatric history or prove prior sanity. Compliance is not merely an ethical obligation. It is the only litigation strategy coherent with the BHR framework and, increasingly, defensible before labour courts guided by the Protocol’s intersectional methodology.

Changing the Compass

Treating IMH exclusively as a bilateral labour dispute limits the available remedy to a lawsuit, one case at a time, consistently disadvantaging the most marginalised workers. A BHR framing changes this entirely: judicial bodies can interpret NR1 and CIPA+A as substantive human rights instruments rather than narrow occupational safety rules. Strategic litigation can build structural precedents, analogous to the environmental and supply chain cases that have reshaped global corporate governance.

The State itself becomes a duty-bearer whose regulatory failures are cognisable before international tribunals. The Inter-American Court of Human Rights has previously condemned Brazil for failing to protect structurally vulnerable workers: in Fazenda Brasil Verde (2016), for perpetuating a structural historical situation of exclusion of workers in situations of poverty, the majority of them Black; and in Fábrica de Fogos (2020), for failing to protect women workers whose intersecting vulnerabilities of gender, race, and class made them structurally captive to dangerous working conditions. The doctrinal architecture of those decisions — structural discrimination, positive State obligations, and the compounding of intersectional vulnerabilities — applies with direct force to IMH.

Conclusion

The invisibility of institutional moral harassment in BHR agendas is not an accident of omission. It is the product of institutional, epistemological, and political choices. This post has argued that CIPA+A and NR1, interpreted through a genuine HRDD lens and an intersectional feminist framework, create three concrete opportunities: by naming psychosocial risk as institutional and therefore legible as a human rights impact; by creating the material conditions for redistributing the burden of proof in harassment-related illness litigation; and by generating a policy coherence obligation that extends corporate human rights commitments to litigation conduct.

Overcoming the structural silence that surrounds IMH requires more than better compliance mechanisms. It requires recognising that organisational violence is a human rights problem, and that the normative resources to address it, in Brazilian law and in international human rights standards, are already operational. The question is whether companies, courts, and States will use them.