48 Pages Posted: 29 Jul 2015
Date Written: July 28, 2015
This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias conties to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persists.
This paper extends the research on implicit bias to dispute system design and examines how a reconciliation-focused dispute system design might more effectively resolve workplace discrimination conflicts caused by implicit bias. Inspired by the fundamental values of peace reconciliation that are a part restorative justice principles the proposed design abandons the status quo approach that mischaracterizes employees and employers as victims and offender and replaces it with a more responsive dispute system design. This design promotes awareness, understanding, and affirmative steps between employees and employers about the implicit biases that may unintentionally shape workplace discrimination. An essential purpose of such a design is to transform the conflict discourse surrounding employment discrimination from one of blame to one of awareness, understanding, and problem solving by beginning to address both the presenting employee/employer conflict as well as the more deep-seated unconscious discrimination that is ingrained in the broader workplace culture. The goal is to create a dispute system design that encourages employees and employers to work together to create a discrimination-free work environment.
Suggested Citation: Suggested Citation
Greenberg, Elayne E., Fitting the Forum to the Pernicious Fuss: A Dispute Resolution Design to Address Implicit Bias and 'Isms in the Workplace (July 28, 2015). St. John's Legal Studies Research Paper No. 15-0023. Available at SSRN: https://ssrn.com/abstract=2636840 or http://dx.doi.org/10.2139/ssrn.2636840