In spite of anti-discrimination training, many federal and state laws, and company policies and regulations, harassment and discrimination continue in the workplace. Obviously, addressing complaints after wrongdoing has occurred is just a band-aid to a much deeper problem. Is it time for employers to consider proactive and preventive measures like restorative practices to eradicate the problem? Restorative justice practices work in so many settings, why not the workplace too?
In October of 2017, a NBC News/Wall Street Journal poll indicated that nearly half of all working women in the US had experienced some form of sexual, verbal or physical harassment on the job.
An EEOC Select Taskforce created in 2016 found that 40 percent of women employees reported harassment such as sexual coercion and unwanted sexual attention. Sixty percent of working women experienced harassing jokes or sexist jokes in the workplace.
In male-dominated industries such as Science, Technology, Engineering, and Medicine (STEM), a 2017 Pew Research Center study revealed that 50 percent of women suffered gender discrimination. More specifically, 74 percent of women in software development experienced discrimination because of their gender.
Following these polls, studies, and newly-created departments, the US Supreme Court made a landmark decision in 2020 and expanded the class of people protected by Title VII. The protection extends to employment discrimination based on transgender status and sexual orientation. In Bostock v. Clayton County, 140 S. Ct. 1731 (2020), two men were fired after their employer learned that they were gay, and a woman was also terminated when she revealed her gender status. In these three cases, the court reacted by saying “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 1741
The Costly Impact of Harassment and Discrimination
The outcome of harassment or discrimination means the entire workforce suffers. Firstly there’s the victim. Victims of harassment and discrimination often face mental and physical consequences like sleep disorders, nausea, anxiety, depression, weight loss, and a loss of self-esteem. In the long run, this affects their job performance and their attendance may become spotty. Overall, the work environment has received the message that workers who assert their individuality will be demoralized and that the employer seeks to reinforce sexual stereotypes.
Secondly, the workplace environment suffers when harassment and discrimination occur with decreased morale, dwindling productivity, increased sick leave, and higher turnover leading to litigation costs. In 2017, of the 84,000 workplace discrimination charges filed with the EEOC, 25,000 were based on sex. Victims of harassment and discrimination received $398 million in compensation through the efforts of the EEOC.
Restorative Practices in Gender Harassment and Discrimination
In addition to existing complaint procedures and processes, employers can offer dispute resolution options, like restorative practices, for gender and LGBTQ harassment and discrimination. Restorative practices can be used to address harassing behavior towards a specific individual or address the general work environment and stop gender harassment and discrimination from becoming the ‘norm.’
Restorative Practices: Workplace Conferences
Workplace restorative conferences can address issues of the following three types of sexual harassment:
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Harassment about a person’s gender includes verbal and non-verbal behavior expressing exclusion, poor treatment, objectification, and hostility.
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Unwanted sexual verbal and physical advances to sexual assault.
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Quid pro quo sexual harassment where sexual activity is exchanged for a promotion, a positive work review, or some other work favor.
With a trained restorative justice facilitator, a workplace conference offers a safe and respectful environment to discuss the harassment. It’s also a place to talk about the consequences and impact as well as how to correct the harm that has been done. Collaboratively, participants discuss the conduct, express their emotions, consider ways to address the harm that’s been done, and reach an agreement on how to move forward.
At a workplace restorative conference, a facilitator guides the discussion through a structured process. The idea is to expand upon the three principles of the restorative process:
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Participants should feel engaged enough to share their beliefs or views, and become involved with the decision-making.
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Explanations about the decision made so that participants understand the reason it was chosen.
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An explanation of expectations in the workplace. Everyone understands the conduct and behavior that is expected of them in the future.
The objective of a restorative conference is to understand how each individual’s actions have affected others and create a plan of action that deals with the harm and rebuilds trust. Restorative conferences are meant to be healing and empowering. Those who have been harmed by the sexual misconduct have an opportunity to express their feelings and emotions and provide feedback on how the harm that the misconduct has caused can be healed. Those who have caused harm learn more about the impact their misconduct has on others. They also take responsibility and become involved in the solution.
Restorative Practices: Workplace Circles
Restorative circles are run by trained facilitators. It may start with them raising a topic for discussion. Circles address both group and individual needs, encourage dialogue, rebuild trust, and allows for those employees to take responsibility for the harm they caused. Generally, a symbol is passed around to each individual as they speak so that others know it’s their turn and that interruptions are not allowed. Argument and debate are not allowed. The process of circles allows those who are reluctant to speak their concerns an opportunity to do so while others who tend to dominate the dialogue practice patience to wait their turn.
The goals of restorative circles are for participants to gain an understanding and an appreciation of others’ perspectives as well as their own. They should also have a greater understanding of the harm caused and its impact both individually and collectively. Solutions aim to heal relationships, improve work environments and address conflict proactively and correctly.
Employers will find that outcomes of restorative circles and conferences may revise training programs, and place an emphasis on civility and respect in the workplace. Emphasis on bystander intervention training is one such area that can be included in employee training programs.
