By Danni Bian
The #MeToo movement has prompted widespread recognition that sexual harassment is pervasive both in and out of the workplace.[1] About twenty-two percent of employed women in the United States reported experiencing sexual harassment at work, compared with seven percent of employed men.[2] Approximately forty-two percent of employed women in the United States have faced some kind of gender discrimination at work, including earning less salary and receiving less support from senior leaders than male co-workers who do the same jobs.[3] Traditional legal and policy-based interventions, such as anti-discrimination laws, have been viewed as ineffective tools to eliminate workplace discrimination and redress gender violence crimes.[4] Given the limitations that law and policy failed to meet survivors’ needs, advocates and policymakers suggested integrating restorative approaches to help employees who are involved in sexual harassment cases.[5]
Over the last decade, the law and policy in response to gender violence cases have greatly focused on criminalization, which includes expanding the death penalty, adding mandatory life sentences for federal offenders, and permitting evidence of prior sex abuse as proof of a defendant’s character for their current cases.[6] However, the prioritization of criminalization is ineffective because of the “cycle of violence,” in which many people who commit violence themselves were prior victims.[7] Therefore, practitioners should consider adopting restorative interventions rather than perpetuating punishment to end the cycle of violence.
Restorative practices refer to an approach to conflict resolution by repairing harm and healing relationships.[8] A growing number of programs have explored the use of restorative justice practices in cases of gender violence to promote reflection, responsibility, behavior change, and repair of damages.[9] In contrast to the criminal legal system, which focuses on punishment, restorative justice focuses on what harm has been done and how the person who committed that harm might take responsibility for and repair the wrong done.[10] In addition, restorative justice attempts to balance the needs of the community and gives both survivors and offenders opportunities to communicate the impact on the victim and the future steps to alleviate the harm.[11]
Restorative practices offer a variety of options that may assist with the purpose of anti-discrimination law because the practices focus on the harm rather than the intent of the person. The practices give the victim an opportunity to address the offensive conduct rather than seeking punitive outcomes.[12]Furthermore, they build a collaborative and safe learning environment in the workplace that supports an anti-discrimination culture and practices equality norms, which offers a much broader range of remedies than traditional approaches.[13]
Different from mediation, in which both parties are viewed as neutrally equal, restorative justice recognizes the wrongdoer’s actions and addresses the issue of harm.[14] In addition, contrary to violent acts committed between private individuals, workplace sexual harassment occurs in a context where differences in power dynamics exist.
Because many employees may fear retaliation and feel unsafe, they are less likely to participate in the restorative process.[15] It does not only happen between a supervisor and an employee but also in co-worker relationships, in which an employee may also be reluctant to report because a co-worker may have power over job assignments and working conditions through informal networks and relationships.[16] Therefore, the employer institution plays a significant role to support a shared commitment to end workplace harassment and discrimination. To ensure effective implementation, from a practical perspective, employers have to incorporate restorative practice into existing human resource policies and rules. From a legal perspective, parties need to discuss the settlement, any subsequent litigation, and issues of confidentiality.[17] From a procedural perspective, parties need to address statutes of limitations and administrative exhaustion requirements.[18] In addition, from the conceptual perspective, parties must establish the ethical standard to control the behavior and set the expectations of practitioners.[19]
In sum, adopting restorative practices on sexual harassment can help the reflection and behavior change for gender violence and provide accountability and safety for future justice in the workplace.
[1] Julie Goldscheid, #MeToo, Sexual Harassment, and Accountability: Considering the Role of Restorative Approaches, 36 Ohio St. J. on Disp. Resol. 689, 691 (2021).
[2]John Gramlich, 10 Things We Learned About Gender Issues in the U.S. in 2017, Pew Rsch. Ctr. (Dec. 28, 2017). https://www.pewresearch.org/fact-tank/2017/12/28/10-things-we-learned-about-gender-issues-in-the-u-s-in-2017/.
[3] Id.
[4] Julie Goldscheid & Rene Kathawala, State Civil Rights Remedies for Gender Violence: A Tool for Accountability, 87 U. Cin. L. Rev. 171, 172 (2018).
[5] See Goldscheid, supra note 1, at 700.
[6] Donna Coker & Ahjan D. Macquolid, Why Opposing Hyper-Incarceration Should Be Central to the Work of the Anti-Domestic Violence Movement, 5 U. Miami Race & Soc. Just. L. Rev. 585, 592 (2015).
[7] Abbe Smith, The “Monster” in All of Us: When Victims Become Perpetrators, 38 Suffolk Univ. L.Rev. 367, 393 (2005).
[8] Goldscheid, supra note 1 at 705.
[9] Id.
[10] Id. at 707.
[11] Id.
[12] Deborah T. Eisenberg, The Restorative Workplace: An Organizational Learning
Approach to Discrimination, 50 Univ. Rich. L. Rev. 487, 547-48 (2016).
[13] Id. at 494.
[14] Ana Avendaño, #MeToo Inside the Labor Movement, New Lab. Form (Jan. 2019),
https://newlaborforum.cuny.edu/2019/01/24/metoo-inside-the-labor-movement/#_edn38.
[15] Goldscheid, supra note 1 at 721.
[16] Louise F. Fitzgerald, Science v. Myth: The Failure of Reason in the Clarence Thomas Hearings, 65 S. Cal. L. Rev. 1399, 1402 (1992).
[17] Goldscheid, supra note 1 at 735.
[18] Id.
[19] Id.