Law professor Susan Duncan (Louisville) provides some thought-provoking ideas about the use of restorative justice practices in workplace bullying prevention and response in a 2011 law review article published in the Industrial Law Journal.
Restorative justice practices, states Duncan, attempt to bring together victims and offenders to discuss the harms done and “to work to identify ways to make amends and repair the relationships.” They are being tested and applied especially in criminal justice, domestic relations, and educational settings.
Duncan proposes that they be applied to the workplace, especially to addressing bullying. For employers, she sets out a multifaceted agenda that includes conducting workplace audits to assess “violence vulnerability,” developing “creative methods to build community and help prevent bullying,” implementing written policies concerning bullying and respect, training employees “on restorative principles and practices,” and conducting empirical studies to evaluate the effectiveness of restorative justice practices at work.
A way forward?
Many of Professor Duncan’s recommendations are consistent with ideas advanced in this blog; indeed, she wrote the piece partially in response to an invitation I issued to legal scholars in a 2010 law review article to incorporate therapeutic jurisprudence approaches to the development and practice of employment law.
Unfortunately, the core notion of restorative justice – genuine dialogue over harms done and repairing frayed work relationships — remains foreign to many employers, their HR staff, and employment lawyers representing both management and workers. Adopting these ideas would require a considerable rethinking of how employment conflicts and disputes are resolved.
The possible use of restorative justice practices to address workplace bullying is undercut by the absence of legal protections, giving employers scant incentive to apply them to abusive behaviors that often are completely legal. In the U.S., enactment of the Healthy Workplace Bill could make restorative justice approaches more attractive to employers.
Professor Duncan’s article, “Workplace Bullying and the Role Restorative Practices Can Play in Preventing and Addressing the Problem,” Industrial Law Journal (2011) may be downloaded without charge here.