Title VII cases alleging sex harassment have become almost completely deferential to employers who have anti-harassment policies. In this Note, I discuss legal and sociological influences on this development and propose using restorative justice focused mediation to avoid rendering Title VII entirely ineffective. Mediation should only be compelled as a remedy—after a court finds that harassment occurred, but that the plaintiff cannot prove her employer knew about the harassment. Instead of dismissing these cases—where judges have already found illegal discrimination—some corrective action should be imposed on the employer for its failure to maintain a harassment-free workplace. Focusing mediation on principles of restorative justice makes the parties likely to understand and respond to each other’s points of view. Harassers who understand how harassment harms their victims will be more receptive to changing their behavior than if they were punished without explanation. Employers that understand the effect of harassment on their employees will feel a stronger responsibility to actively monitor their workplaces for unacceptable conduct.
Employer Liability for Sex Harassment Through the Lens of Restorative Justice,
69 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol69/iss3/8