Deborah Thompson Eisenberg
University of Maryland Francis King Carey School of Law
September 1, 2015
University of Richmond Law Review, Forthcoming
U of Maryland Legal Studies Research Paper No. 2015-28
On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach — restorative practices — that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices engage everyone in the organization with a sense of ownership in and commitment to the mission of building an inclusive, egalitarian workplace.
Merging research from the fields of employment law, organizational management, and cognitive psychology, this article analyzes how restorative practices can facilitate an organizational learning approach to workplace discrimination. Proactively, restorative dialogue helps to build social capital, reduce explicit and implicit biases, and cultivate a shared commitment to egalitarian norms. Reactively, restorative practices can manage defensive routines often triggered by discrimination complaints and provide a process that can transform conflict into greater understanding and change. A restorative approach makes it more likely that the individuals involved — and the larger organization — can repair the harms caused by discrimination, correct systemic issues underlying the problem, and learn to prevent inequities in the future.