Procedural Remedies as Continuing Violations and Therapeutic Jurisprudence as Best Practice to Prevent Workplace Harassment in the United States

Procedural Remedies as Continuing Violations and Therapeutic Jurisprudence as Best Practice to Prevent Workplace Harassment in the United States

Marta Vides Saade (Ramapo College of New Jersey, USA)
Copyright: © 2017 |Pages: 24
DOI: 10.4018/978-1-5225-2472-4.ch010
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Abstract

The well-being of adversaries and witnesses participating in workplace gender and sex discrimination actions filed under federal and state laws in the United States is generally not considered as important. These actions are typically initiated within the personal workplace where the offending conduct presumably occurred, and proceed in an already tension filled atmosphere. The effect is that the procedure itself becomes an additional violation harming claimants through overt and micro-aggressions. These practices have focused on “rule” not “relational” principles. Conventional law and policy frameworks inadequately address the harms these processes promote. This chapter will move from the limitations of rights-based regulation to a jurisprudence of imperfect obligations and vulnerability, incorporating therapeutic understandings of needs and relationships, as the more inclusive and equitable foundation of institutional practices. It offers “best practices” models in therapeutic jurisprudence as alternatives to resolve workplace conflicts.
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Introduction

In the United States, people are protected by law from workplace race and sex harassment, including by a body of federal statutes within Title VII of the Civil Rights Act of 1964 (Title VII), as well as by state laws which, in some instances, expand federal protections and restrictions by what are known as “no tolerance” provisions. Since 2012, the federal standards have been applied in cases involving gender identity, change of sex, and/or transgender status. These classes of workers have been generally considered statutorily protected by Title VII as in, for instance, the Equal Employment Opportunity Commission (EEOC) decision in Macy v. Holder Appeal No. 0120120821 (Apr. 20, 2012). Recent literature evidences an emergent tension between the resolutions sought in workplace harassment claims made by women and those fashioned in the contexts of the more recent claims made by transgender persons. Many of the latter claims are rooted in the argument that the aggrieved belongs to two protected classes: sex and gender. These claims are also making clearer the deficiency of remedies based solely on rights-based practices rather than those based on therapeutic best practices.

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