The Restorative Workplace: An Organizational Learning Approach to Discrimination

Deborah Thompson Eisenberg *

As Title VII of the Civil Rights Act of 1964 turns fifty,[1] many employers continue to search for effective ways to integrate its rights-based antidiscrimination mandates into the practical realities of managing an organization. Title VII and related laws[2] have two core purposes. The “primary objective” is an antidiscrimination or egalitarian goal: “to achieve equality of employment opportunities and remove” discriminatory barriers in the workplace.[3] In the words of one federal court, Title VII aimed “to liberate the workplace from the demeaning influence of discrimination, and thereby to implement the goals of human dignity and economic equality in employment.”[4]

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*  Professor of Law and Faculty Director, Center for Dispute Resolution, University of Maryland Francis King Carey School of Law. I am grateful for the restorative justice practitioners who shared their wisdom and experiences, including Dr. Lauren Abramson, Kay Pranis, Beth Alosi, Tracy Roberts, and Leigh Ann Roberts, as well as my colleagues at the Center for Dispute Resolution: Barbara Sugarman Grochal, Toby Treem Guerin, and Anastasia Smith. I also thank the scholars who commented on the idea and previous drafts, including Michael Fischl, Elayne Greenberg, Maxwell Stearns, Martha Ertman, Leigh Goodmark, and other faculty at Maryland Carey Law, the University of Pittsburgh School of Law, the AALS ADR Section Works-in-Progress Conference, and the Law & Society Conference. Kerishe Allen, Jenny Rensler, Charles Pipins, and Susan McCarty provided excellent research and citation assistance.

[1].    Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1) (2012). President Lyndon Johnson signed Title VII into law on July 2, 1964. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 28 U.S.C. and 42 U.S.C.).

[2].    Other employment discrimination laws include, for example: the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (2012), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621–634 (2012), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2012).

[3].    Griggs v. Duke Power Co., 401 U.S. 424, 429–30 (1971).

[4].    King v. Hillen, 21 F.3d 1572, 1582 (Fed. Cir. 1994).