Workplace grievance procedures: Signaling fairness but escalating commitment

New York University Law Review

Volumn 86, Issue 2, 2011, Pages 638-672

  Polster, Joshua C ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79955783385     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (338)

1. This Note focuses on nonunion grievance procedures. Union workplaces use similar procedures.
2. See infra notes 19-20 and accompanying text (describing evolution of nonunion procedures from union procedures). But the effects of escalation in union workplaces may be more attenuated because appeals decisions are made by unions rather than by individual grievants.
3. Vaca v. Sipes, 386 U.S. 171, 191-95 (1967) (holding that unions maintain ultimate discretion over decision to appeal grievances). Although this Note focuses on employees, escalation may also affect employers. For example, higher-level managers may deny grievances in order to justify the actions of lower-level managers.
4. Bernadine Van Gramberg & Jane Menzies, Grievance Procedures in Organisations-Why Do They Fail? 5 (Sch. of Mgmt., Vict. Univ., Melbourne, Working Paper No. 12, 2005), available at http://pandora.nla.gov.au/pan/39844/20060221-0000/www.business.vu.edu.au/mgt/pdf/working_papers/2005/wp12_2005_%20bvg_menzies.pdf (noting that senior manager support of grievance decisions made by lower-level managers is ''consistent with 'escalation of commitment' theory'').
5. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471 (1998) (introducing behavioral economic theories and applying them to legal issues).
6. The connection between escalation and grievance procedures has been briefly noted in employment scholarship.
7. Brian Bemmels & Janice R. Foley, Grievance Procedure Research: A Review and Theoretical Recommendations, 22 J. MGMT. 359, 375 (1996) (suggesting that escalation is ''relevant'' to grievance process research);
8. Van Gramberg & Menzies, supra note 1, at 5 (proposing that escalation may cause managers to become increasingly committed to opposing employees' grievances).
9. See infra note 88 and accompanying text.
10. Peter Feuille & John T. Delaney, The Individual Pursuit of Organizational Justice: Grievance Procedures in Nonunion Workplaces, in 10 RESEARCH IN PERSONNEL AND HUMAN RESOURCES MANAGEMENT 187, 190 (Gerald R. Ferris & Kendrith M. Rowland eds., 1992).
11. David Lewin, Workplace Dispute Resolution, in 2 THE HUMAN RESOURCE MANAGEMENT HANDBOOK 197, 198 (David Lewin, Daniel J.B. Mitchell & Mahmood A. Zaidi eds., 1997) [hereinafter Lewin, Workplace Dispute Resolution].
12. FRANK DOBBIN, INVENTING EQUAL OPPORTUNITY 95 (2009) (''Only 4 percent of employers added a nonunion grievance procedure between 1964 and 1972, for a total of 16 percent by 1972. Another 35 percent added a procedure between 1973 and 1986.'');
13. Feuille & Delaney, supra note 5, at 197 (summarizing surveys finding that in early 1960s, 11% of nonunion firms reported formal procedures; in late 1960s, 30% reported formal procedures; and in late 1970s, 44% reported formal procedures);
14. Casey Ichniowski & David Lewin, Characteristics of Grievance Procedures: Evidence from Nonunion, Union, and Double-Breasted Businesses, in INDUSTRIAL RELATIONS RESEARCH ASSOCIATION SERIES: PROCEEDINGS OF THE FORTIETH ANNUAL MEETING, DEC. 28-30, 1987, at 415, 420-21 (Barbara D. Dennis ed., 1988) (finding that percentage of grievance procedures in given occupational groups ''increased by two to two-and-one-half times between 1960 and 1970, and again at about that rate between 1970 and 1980'').
15. David Lewin, Unionism and Employment Conflict Resolution: Rethinking Collective Voice and Its Consequences, 26 J. LAB. RES. 209, 215-16 (2005) [hereinafter Lewin, Conflict Resolution].
16. Lauren B. Edelman, Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace, 95 AM. J. SOC. 1401, 1419, 1422, 1430 (1990) (finding, in survey of organizations with mean size of about 10,000 employees, that more than half of employers adopted formal grievance procedures, and larger employers were significantly more likely to adopt procedures);
17. Peter Feuille & Denise R. Chachere, Looking Fair or Being Fair: Remedial Voice Procedures in Nonunion Workplaces, 21 J. MGMT. 27, 34 (1995) (finding that more than half of surveyed organizations had grievance procedures, organizations with grievance procedures employed average of about 63,000 employees, and organizations without grievance procedures employed average of about 28,000 employees).
18. DOUGLAS M. MCCABE, CORPORATE NONUNION COMPLAINT PROCEDURES AND SYSTEMS: A STRATEGIC HUMAN RESOURCES MANAGEMENT ANALYSIS 161 (1988) (describing grievance procedures as ''elaborate arrangement[s] for an employee to appeal from his or her immediate supervisor's decision... to higher management in ascending steps''); Edelman, supra note 9, at 1406 (''In general, the nonunion grievance procedures... provide for multiple levels of review and specify the steps that must be taken to appeal a decision....'').
19. Ronald L. Miller, Grievance Procedures for Nonunion Employees, 7 PUB. PERSONNEL MGMT. 302, 303 (1978).
20. David Lewin, Grievance Procedures in Nonunion Workplaces: An Empirical Analysis of Usage, Dynamics, and Outcomes, 66 CHI.-KENT L. REV. 823, 828 (1990) [hereinafter Lewin, Empirical Analysis], for a sample of issues grieved at five nonunion firms.
21. Feuille & Chachere, supra note 9, at 31 (discussing differing levels of formality in various grievance procedures).
22. David Lewin, Dispute Resolution in the Nonunion Firm, 31 J. CONFLICT RESOL. 465, 470 tbl.1 (1987) [hereinafter Lewin, Nonunion Firm] (summarizing grievance procedures in three nonunion firms).
23. Miller, supra note 11, at 310 (advising employers designing grievance procedures that they may limit remedies available to grievants).
24. Lewin, Workplace Dispute Resolution, supra note 6, at 199 (excerpting grievance policy that instructs supervisors to resolve grievances ''as equitably as possible'');
25. Lewin, Nonunion Firm, supra note 14, at 469 n.3 (finding that some determinations included terms that were favorable to each party).
26. Feuille & Chachere, supra note 9, at 35.
27. Lewin, Workplace Dispute Resolution, supra note 6, at 205 (finding management official adjudicated top-level appeal for four out of five employers studied);
28. Miller, supra note 11, at 303 (finding that in most widely used form of grievance procedures, ''final decision-making authority remains with top management'').
29. Some firms provide final review by a neutral arbitrator, Alexander J.S. Colvin, Institutional Pressures, Human Resource Strategies, and the Rise of Nonunion Dispute Resolution Procedures, 56 INDUS. & LAB. REL. REV. 375, 379 (2003), or a tribunal composed of managers and employees,
30. Feuille &Delaney, supra note 5, at 210-11.
31. BUREAU OF NAT'L AFFAIRS, BASIC PATTERNS IN UNION CONTRACTS 33 (14th ed. 1995).
32. Feuille & Delaney, supra note 5, at 198 (''Probably the most widely publicized reason for this growth in grievance procedures is the desire of these nonunion employers to remain nonunion.'').
33. Id. at 199.
34. Lauren B. Edelman, Christopher Uggen & Howard S. Erlanger, The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth, 105 AM. J. SOC. 406, 412-13 (1999) (finding that business and management literature initially proposed grievance procedures as mechanism for union avoidance but then focused on procedures' benefits for reducing legal liability).
35. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 273-74 (1975) (Powell, J., dissenting) (''The power to discipline or discharge employees has been recognized uniformly as one of the elemental prerogatives of management.'');
36. Adair v. United States, 208 U.S. 161, 175-76 (1908) (''In the absence, however, of a valid contract... it cannot be, we repeat, that an employer is under any legal obligation, against his will, to retain an employ ́ e in his personal service....'').
37. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000a-2000e (2006)). The Act initially prohibited discrimination only by private employers but was amended by the Equal Opportunity Act of 1972 to forbid discrimination by public employers as well. Pub. L. No. 92-261, 86 Stat. 103 (codified as amended in scattered sections of 42 U.S.C. (2006)). The Act has also been amended to define sex discrimination as including discrimination based on pregnancy. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k) (2006)).
38. Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621-634 (2006)).
39. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213 (2006)).
40. David J. Walsh & Joshua L. Schwarz, State Common Law Wrongful Discharge Doctrines: Up-Date, Refinement, and Rationales, 33 AM. BUS. L.J. 645, 648-49 (1996).
41. Terminations can violate public policy when employees are dismissed for refusing an employer's request to break the law, for reporting illegal employer activity, or for claiming benefits, such as workers' compensation, to which they are legally entitled.
42. Joseph E. Slater, The American Rule That Swallows the Exceptions, 11 EMP. RTS. & EMP. POL'Y J. 53, 96-97 (2007).
43. Terminations can violate an implied contract when employers have made representations to employees concerning job security, such as oral promises and handbook policies.
44. Walsh & Schwarz, supra note 27, at 646-47.
45. Terminations can violate good faith and fair dealing when they deprive employees of benefits they have already earned.
46. Id. at 647.
47. Edelman, Uggen &Erlanger, supra note 22, at 413-14 (describing articles advising employers to adopt grievance procedures in order to minimize chances employees would pursue redress externally);
48. Peter M. Panken, What Every Company Should Have: A Formal Employee Complaint Procedure, 73 MGMT. REV. 42, 42 (1984) (''A good grievance procedure keeps problems within the company. It encourages fair treatment. But most importantly, it deters employees from seeking representation by outsiders-unions, government agencies (like the [Equal Employment Opportunity Commission] or [Occupational Safety and Health Administration]) or even lawyers.'').
49. Frank Dobbin & Erin L. Kelly, How To Stop Harassment: Professional Construction of Legal Compliance in Organizations, 112 AM. J. SOC. 1203, 1209-11 (2007) (examining articles advising employers to adopt grievance procedures in order to increase chances of success in litigation);
50. Edelman, Uggen & Erlanger, supra note 22, at 413-14 (same);
51. David W. Ewing, Due Process: Will Business Default?, HARV. BUS. REV., Nov. 1, 1982, at 121 (''[A]ttorneys with whom I have talked believe that an incompany hearing procedure can be helpful in case the employee objector takes the company to court; that is, evidence that an objector has been turned down in a fair hearing will be admitted into a legal proceeding.'');
52. Alfred G. Feliu, Legal Consequences of Nonunion Dispute Resolution Systems, 13 EMP. REL. L.J. 83, 90 (1987) (''An employee who fails to present his or her claim first to the company system for resolution may be viewed by the judge or jury as rash, insincere, or litigious.'').
53. Edelman, supra note 9, at 1410-11.
54. Id. at 1410
55. (''[T]he civil rights movement and legal mandates of the 1960s lent legitimacy to workers' claims to fair treatment by management. Examples from professional journals depict-and help convey-the business world's developing perception of societal expectations of fair governance.'').
56. DOBBIN, supra note 7, at 132.
57. Edelman, supra note 9, at 1411 (''[E]fficiency-wage theorists suggest that employees may work harder if they view fair treatment as a reward or gift for hard work.'').
58. Edelman, Uggen & Erlanger, supra note 22, at 413 (concluding that employers, advised by personnel journals, believed that grievance procedures would ''provide a sense of justice to employees'' and thereby ''improve morale and productivity'').
59. Procedural justice is distinguished from distributive justice, which refers to the fairness of an outcome.
60. JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS (1975) (introducing theories of procedural justice). Grievance procedures may provide procedural justice by allowing employees to voice their concerns to management.
61. infra note 142.
62. The Court held that public-sector employees could have property interests in their jobs in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972),
63. Perry v. Sindermann, 408 U.S. 593 (1972). ''A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.'' Perry, 408 U.S. at 601. A public employer may not deprive an employee of such an interest without due process.
64. U.S. CONST. amend. XIV, § 1. Roth and Perry concerned state employees, so the Fourteenth Amendment was applicable. The Court applied Fifth Amendment due process protection, U.S. CONST. amend.
65. V, to federal employees in Arnett v. Kennedy, 416 U.S. 134 (1974). To determine the extent of due process necessary, courts weigh ''the private interest that will be affected by the official action;... the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
66. finally, the Government's interest.'' Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
67. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
68. Id. at 546-47.
69. Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 491-92 (1976) (finding hearing board was unbiased because employees ''did not show... that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there [was] nothing in the record to support charges of personal animosity'').
70. Wells v. Dall. Indep. Sch. Dist., 793 F.2d 679, 683 (5th Cir. 1986) (''When an administrative termination hearing is required, federal constitutional due process demands either an opportunity for the person charged to confront the witnesses against him and to hear their testimony or a reasonable substitute for that opportunity.'');
71. Walker v. United States, 744 F.2d 67, 70 (10th Cir. 1984) (''While not necessary in every case, 'procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.''' (quoting Willner v. Comm. on Character and Fitness, 373 U.S. 96, 103 (1963)).
72. Gilbert v. Homar, 520 U.S. 924, 934-35 (1997).
73. Pub. L. No. 95-454, 92 Stat. 1111 (codified in scattered sections of 5, 10, 28, 31, 38, and 42 U.S.C. (2006)).
74. 5 U.S.C. § 7512(1)-(5) (2006) (covering suspensions of more than fourteen days and furloughs of less than thirty days). Federal employees are covered by the law if they work in the competitive service and are either not under a probationary period or have completed one year of service. Id. § 7511(a)(1);
75. id. § 2102
76. defining competitive service, which generally consists of civil service positions in executive branch that are not subject to Senate confirmation.
77. Id. § 7513(b).
78. id. § 7701(b)(1)
79. allowing Merit Systems Protection Board to assign appeals to administrative law judges
80. Id. § 7701(e)(1)(A).
81. Id. § 7701(b)(1).
82. Lauren B. Edelman, John Lande & Howard S. Erlanger, Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace, 27 LAW & SOC'Y REV. 497, 530(1993) (''[B]ecause internal complaint-handling procedures formalize the right to appeal-a basic element of due process-they symbolize legality and fairness both to employees and to the external world....'').
83. E.g., Lekich v. IBM Corp., 469 F. Supp. 485, 488 (E.D. Pa. 1979).
84. E.g., Rogers v. IBM Corp., 500 F. Supp. 867, 869-70 (W.D. Pa. 1980).
85. 524 U.S. 742 (1998).
86. 524 U.S. 775 (1998).
87. While Faragher and Ellerth specifically concerned sexual harassment, their holdings have been extended to all forms of workplace harassment.
88. EQUAL EMP'T OPPORTUNITY COMM'N, ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS 1 (1999) (''[T]he Commission has always taken the position that the same basic standards apply to all types of prohibited harassment.''); see also Ellerth, 524 U.S. at 761 (analogizing between sex, race, age, and national origin discrimination).
89. Ellerth, 524 U.S. at 765;
90. id. at 761 (defining ''tangible employment action'').
91. Id. at 765.
92. The affirmative defense is not available to employers who take ''tangible employment actions,'' such as discharge or demotion.
93. ''While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.'').
94. Faragher, 524 U.S. at 808-09.
95. Kimberly D. Krawiec, Cosmetic Compliance and the Failure of Negotiated Governance, 81 WASH. U. L.Q. 487, 508 (2003);
96. Anne Lawton, Operating in an Empirical Vacuum: The Ellerth and Faragher Affirmative Defense, 13 COLUM. J. GENDER & L. 197, 216-17 (2004);
97. Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir. 2000) (''[B]ecause we find no inherent defect in the complaint procedures established by [the employer's] sexual harassment policy, nor any evidence that the policy was administered in bad faith, we conclude that [the employer] exercised reasonable care to prevent sexual harassment.'');
98. Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999) (''[W]here... there is no evidence that an employer adopted or administered an anti-harassment policy [including a complaint procedure] in bad faith or that the policy was otherwise... dysfunctional, the existence of such a policy militates strongly in favor of a conclusion that the employer 'exercised reasonable care to prevent' and promptly correct sexual harassment.'' (quoting Faragher, 524 U.S. at 778));
99. Idusuyi v. Tenn. Dep't of Children's Servs., 30 F. App'x 398, 403 (6th Cir. 2002) (holding that employer satisfied first prong of affirmative defense with antiharassment policy, grievance procedure, and employee training).
100. Lawton, supra note 60, at 217-18;
101. Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1185-87 (9th Cir. 2005) (finding employer fulfilled first prong of affirmative defense by utilizing antiharassment policy with complaint procedure and promptly responding to complaint);
102. Harper v. City of Jackson Mun. Sch. Dist., 149 F. App'x 295, 301 (5th Cir. 2005) (finding employer fulfilled first prong of affirmative defense when employer's ''harassment policy and response to [Plaintiff's] complaint were both reasonable and vigorous'' (internal quotation omitted));
103. Gawley v. Ind. Univ., 276 F.3d 301, 311-12 (7th Cir. 2001) (finding employer satisfied first prong of affirmative defense when Plaintiff admitted that employer ''had a system in place for employees to report sexual harassment... and that as soon as [Plaintiff] used the system, the [employer] took action and the harassment stopped'').
104. In a survey of district and circuit court cases decided in the five years following Ellerth and Faragher, Anne Lawton found that ''in seventy-three percent of the cases in which the court discusses the employer's prevention obligation under prong one, the court [upon finding the employer had antiharassment and complaint policies and procedures] shifts the burden of proof from the defendant employer to the plaintiff employee.''
105. Lawton, supra note 60, at 238-39.
106. It is difficult for employees to meet this burden of proof because employers are not required to keep records of harassment complaints.
107. Id. at 241.
108. David Sherwyn, Michael Heise & Zev J. Eigen, Don't Train Your Employees and Cancel Your ''1-800'' Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges, 69 FORDHAM L. REV. 1265, 1275, 1290 (2001)
109. finding that in published judicial opinions between June 1998 and January 2000 in which employer asserted affirmative defense and filed motion for summary judgment, employee failure to report was always deemed unreasonable when employer established prong one;
110. Taylor v. Solis, 571 F.3d 1313, 1318 (D.C. Cir. 2009) (''A reasonable employee who believes and tells others she is being sexually harassed would report it if she knows... a complaint procedure has been established for that purpose.'').
111. Lawton, supra note 60, at 242
112. Shabestari v. Utah Non-Profit Hous., 377 F. App'x 770, 773-74 (10th Cir. 2010) (''[Plaintiff] did not... file a grievance pursuant to company policy. Although [Plaintiff] now claims he feared retaliation, 'a generalized fear of retaliation simply is not sufficient' to explain a failure to report harassment. [Plaintiff] unreasonably failed to inform [his employer] about any... harassment....'' (quoting Pinkerton v. Colo. Dep't of Transp., 563 F.3d 1052, 1063 (10th Cir. 2009)));
113. Idusuyi, 30 F. App'x at 404 (''[I]t is unreasonable for employees to pass their own judgments-absent any supporting facts-about how effectively an employer's sexual harassment policies operate. The plaintiff knew of the existence of a sexual harassment policy, and her failure to pursue a remedy under that policy was unreasonable.'');
114. Leopold v. Baccarat Inc., 239 F.3d 243, 246 (2d Cir. 2001) (''Once an employer has satisfied its initial burden of demonstrating that an employee has completely failed to avail herself of the complaint procedure, the burden of production shifts to the employee to come forward with one or more reasons why the employee did not make use of the procedures.'').
115. Employees who do not immediately report harassment often have the burden of showing that their delay was not unreasonable.
116. Lawton, supra note 60, at 262-63;
117. Pinkerton, 563 F.3d at 1063 (''We believe that [the employer] carried its burden, given that [the employer] has shown a reporting delay of approximately two or two and a half months ... for which [Plaintiff] never offered any reason in her briefs on appeal.''). To meet this burden, employees must offer proof beyond subjective fear of retaliation.
118. Thornton v. Fed. Express Corp., 530 F.3d 451, 457 (6th Cir. 2008) (finding plaintiff's failure to report harassment until two months after it had occurred because of unsubstantiated fears of retaliation was unreasonable). Some courts even find delays unreasonable as a matter of law.
119. Lawton, supra note 60, at 253-54;
120. McCombs v. Chrysler Corp., No. IP 99-0697-C-T/K, 2003 WL 1903352, at *8 (S.D. Ind. Mar. 4, 2003) (''[Plaintiff] waited at least two months before reporting [the supervisor's] conduct to [the employer]. Thus, the record establishes that [Plaintiff] unreasonably failed to take advantage of the preventive and corrective opportunities provided by the Defendant.'');
121. Clardy v. Silverleaf Resorts, Inc., No. CIV. A. 399CV2893-P, 2001 WL 1295480, at *9 (N.D. Tex. Oct. 10, 2001) (finding delay in reporting from Thanksgiving until mid-January to be unreasonable).
122. Lawton, supra note 60, at 246;
123. Dowdy v. North Carolina, 23 F. App'x 121, 123 (4th Cir. 2001) (finding employee acted unreasonably when employee reported harassment to incorrect supervisor);
124. Ogden v. Keystone, 226 F. Supp. 2d 588, 602 (M.D. Pa. 2002) (finding employee actions unreasonable when employee informed supervisors of harassment but did not, as specified in complaint procedure, inform human resources);
125. Green v. Wills Grp., 161 F. Supp. 2d 618, 626 (D. Md. 2001) (finding that employee unreasonably failed to take advantage of antiharassment policy when employee complained, but not to human resources, as policy specified).
126. In such cases, the employer can prevail on summary judgment by showing a prompt response to complaints of harassment.
127. Lawton, supra note 60, at 244-45
128. Van Alstyne v. Ackerley Grp., Inc., 8 F. App'x 147, 153 (2d Cir. 2001) (''[Alleged harasser's] actions could not be imputed to the Company because there is no genuine dispute that the Company took immediate and effective corrective action when [Plaintiff] complained.'');
129. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 265-67 (5th Cir. 1999) (plurality) (finding vicarious liability should not be imposed on employer that took prompt remedial action in response to complaint);
130. Gulf States Toyota, Inc. v. Morgan, 89 S.W.3d 766, 772-73 (Tex. App. 2002) (citing Indest in finding plaintiff failed to establish claim of sexual harassment because, once claim was reported, employer took corrective action).
131. John H. Marks, Smoke, Mirrors, and the Disappearance of ''Vicarious'' Liability: The Emergence of a Dubious Summary-Judgment Safe Harbor for Employers Whose Supervisory Personnel Commit Hostile Environment Workplace Harassment, 38 HOUS. L. REV. 1401, 1436 (2002);
132. Sherwyn, Heise & Eigen, supra note 63, at 1280 (finding employers prevail on more than half of summary judgment motions).
133. Dobbin & Kelly, supra note 32, at 1209-11.
134. Edelman, Uggen & Erlanger, supra note 22, at 436.
135. ''It would appear, then, that judicial recognition of grievance procedures did not motivate personnel professionals' claims and organizations' creation of grievance procedures but rather that the courts were following institutionalized organizational practices.'').
136. Idusuyi v. Tenn. Dep't of Children's Servs., 30 F. App'x 398, 403 (6th Cir. 2002) (''A multi-level grievance procedure was in place within [the company] to allow employees to seek a remedy for harassment.'');
137. Oleyar v. Cnty. of Durham, 336 F. Supp. 2d 512, 519 (M.D.N.C. 2004) (''Defendant has policies in place prohibiting discrimination as well as a grievance and appeals process.'');
138. Madrid v. Amazing Pictures, No. Civ.99-1565(DSD/JMM), 2001 WL 837922, at *9 (D. Minn. July 23, 2001) (''There is no dispute that [the employer] promulgated and effectively disseminated a reasonable multi-level complaint procedure as part of its sexual harassment policy.'').
139. In addition to compensatory damages, plaintiffs can receive punitive damages for violations of the Americans with Disabilities Act and certain violations of Title VII of the Civil Rights Act. 42 U.S.C. § 1981a (2006).
140. 527 U.S. 526, 542 (1999).
141. Id. at 545.
142. quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998)).
143. Krawiec, supra note 60, at 505 & n.57;
144. Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 548-49 (4th Cir. 2003) (reversing trial court's award of punitive damages in part because employer had grievance procedure);
145. Hatley v. Hilton Hotels Corp., 308 F.3d 473, 477 (5th Cir. 2002) (citing grievance procedure as reason why trial court properly refused to instruct jury on punitive damages).
146. Barry M. Staw, Counterforces to Change, in CHANGE IN ORGANIZATIONS: NEW PERSPECTIVES ON THEORY, RESEARCH, AND PRACTICE 87, 91 (Paul S. Goodman & Assocs. ed., 1982) [hereinafter Staw, Counterforces to Change].
147. When time is invested, this phenomenon may be labeled as entrapment.
148. Michael G. Bowen, The Escalation Phenomenon Reconsidered: Decision Dilemmas or Decision Errors?, 12 ACAD. MGMT. REV. 52, 53 (1987) (''In contrast to escalation research, subjects in entrapment situations typically incur small continuous losses as they seek or wait to achieve a goal.''). But the terms are often used interchangeably.
149. Barry M. Staw & Jerry Ross, Understanding Behavior in Escalation Situations, 246 SCIENCE 216, 216 (1989). This is similar to the sunk cost effect, which is the broader phenomenon of past investments affecting future choices.
150. Hal R. Arkes & Catherine Blumer, The Psychology of Sunk Cost, 35 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 124 (1985).
151. Unlike escalation, the sunk cost effect does not just refer to situations in which a person contemplates continued investment toward a specific goal in the face of negative feedback.
152. Id. at 137-38.
153. The sunk cost effect could be explained in part by selfjustification, see infra notes 81-84 and accompanying text, and by a broader desire not to appear wasteful.
154. Hal R. Arkes & Peter Ayton, The Sunk Cost and Concorde Effects: Are Humans Less Rational than Lower Animals?, 125 PSYCHOL. BULL. 591, 595-97 (1999) (discussing research on explanations of sunk cost effect).
155. Joel Brockner, The Escalation of Commitment to a Failing Course of Action: Toward Theoretical Progress, 17 ACAD. MGMT. REV. 39, 39 (1992). In Barry Staw's seminal escalation study,
156. Barry M. Staw, Knee-Deep in the Big Muddy: A Study of Escalating Commitment to a Chosen Course of Action, 16 ORGANIZATIONAL BEHAV. & HUM. PERFORMANCE 27 (1976),
157. each participant took on the role of a corporate executive. Participants were divided into two groups: a high personal responsibility condition and a low personal responsibility condition. The participants in the high personal responsibility condition were instructed to completely allocate a sum of money to one of two corporate divisions. Half of these participants were then informed that their chosen division had outperformed the other division, whereas half were informed it had underperformed the other division. Participants were then asked to divide a second allocation of money between the divisions as they saw fit. In the low personal responsibility condition, participants were informed that a previous executive had made an initial monetary allocation. Half were notified that the executive's chosen division had outperformed the other, and half were notified that it underperformed the other. The low personal responsibility participants were then instructed to allocate money between the divisions as they saw fit. Staw found that participants who had personal responsibility for an allocation that lost money invested significantly more money in their previously chosen division than did any of the other three subsets of participants.
158. Staw, supra note 80, at 39-41 (concluding effects of study may be caused by selfjustification);
159. Brockner, supra note 80, at 43-49
160. reviewing escalation research and finding support for self-justification hypothesis). Prospect theory, which holds that people are more likely to take risks to avoid a loss than to secure a gain,
161. Daniel Kahneman & Amos Tversky, Choices, Values, and Frames, 39 AM. PSYCHOLOGIST 341, 342-44 (1984),
162. has also been proposed as an explanation for escalation: When people receive feedback that their investments have not succeeded, they invest more resources to avoid the loss.
163. Glen Whyte, Escalating Commitment in Individual and Group Decision Making: A Prospect Theory Approach, 54 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 430 (1993). Prospect theory could operate in conjunction with self-justification to explain escalation.
164. Staw & Ross, supra note 79, at 217.
165. LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957).
166. Darwyn E. Linder, Joel Cooper & Edward E. Jones, Decision Freedom as a Determinant of the Role of Incentive Magnitude in Attitude Change, 6 J. PERSONALITY & SOC. PSYCHOL. 245, 245 (1967) (summarizing forced compliance studies).
167. JOEL BROCKNER & JEFFREY Z. RUBIN, ENTRAPMENT IN ESCALATING CONFLICTS: A SOCIAL PSYCHOLOGICAL ANALYSIS 5 (1985) (''[E]ntrapped decision makers' motives shift over time, from the rational to the rationalizing.'');
168. Barry M. Staw, The Escalation of Commitment to a Course of Action, 6 ACAD. MGMT. REV. 578, 579 (1981)
169. [hereinafter Staw, Escalation of Commitment] (''By committing new and additional resources, an individual who has suffered a setback could attempt to 'turn the situation around' or to demonstrate the ultimate rationality of his or her original course of action.'').
170. supra note 80 (summarizing Staw's study).
171. Brian C. Gunia, Niro Sivanathan & Adam D. Galinsky, Vicarious Entrapment: Your Sunk Costs, My Escalation of Commitment, 45 J. EXPERIMENTAL SOC. PSYCHOL. 1238, 1238-39 (2009) (summarizing escalation theory and literature);
172. Gillian Ku, Learning To De-escalate: The Effects of Regret in Escalation of Commitment, 105 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 221, 221 (2008)
173. ''Research on escalation of commitment has repeatedly demonstrated that after investing... any important resource, many individuals... become psychologically committed to and reinvest in their initially-chosen (failing) course of action.'' (citations omitted)).
174. Troy A. Paredes, Too Much Pay, Too Much Deference: Behavioral Corporate Finance, CEOs, and Corporate Governance, 32 FLA. ST. U. L. REV. 673, 691-92 (2005).
175. Richard Birke & Craig R. Fox, Psychological Principles in Negotiating Civil Settlements, 4 HARV. NEGOT. L. REV. 1, 23-24 (1999).
176. Kevin C. McMunigal, Guilty Pleas, Brady Disclosure, and Wrongful Convictions, 57 CASE W. RES. L. REV. 651, 655-56 (2007).
177. Staw & Ross, supra note 79, at 217.
178. James P. Swann, Formal Grievance Procedures in Non-union Plants, 26 PERSONNEL ADMIN. 66, 68 (1981) (indicating employees ask coworkers for grievance advice).
179. Staw, Escalation of Commitment, supra note 84, at 580-81.
180. Staw only discusses the norms in reference to upper-level management, id., but these norms may also be present for lower-level employees.
181. BROCKNER and RUBIN, supra note 84, at 224;
182. Staw, Counterforces to Change, supra note 78, at 96
183. ''[B]ecause norms for rationality are so dominant in business and government organizations,... role occupants in these settings may also find it necessary to justify their actions to constituents within and outside the organization.'').
184. Frederick V. Fox & Barry M. Staw, The Trapped Administrator: Effects of Job Insecurity and Policy Resistance upon Commitment to a Course of Action, 24 ADMIN. SCI. Q. 449 (1979)
185. showing that experimental participants who were informed that they could be demoted based on their previously made decisions committed more resources to those choices than did participants who believed that their jobs were secure.
186. showing that experimental participants who were informed that board of directors opposed their decisions invested more resources in those decisions than did participants who were informed that board of directors supported their decisions.
187. By filing grievances, employees necessarily come into conflict with management by claiming that management acted improperly. See supra note 5 and accompanying text (describing grievances as employee allegations of unfair treatment and requests for redress). Because they believe that they have been treated unfairly regarding an important aspect of their jobs, employees may also believe that their jobs are at risk. See supra note 12 and accompanying text (explaining that grievances are commonly filed contesting pay, benefits, performance evaluations, and discipline.
188. Jeffrey Z. Rubin et al., Factors Affecting Entry into Psychological Traps, 24 J. CONFLICT RESOL. 405, 411-16 (1980)
189. showing that male participants who competed against others were more likely to escalate than those working individually.
190. Bowen, supra note 79, at 61.
191. Bowen suggests that the feedback that Barry Staw, see supra note 80, characterized as negative was actually equivocal.
192. Bowen, supra note 79, at 54-56.
193. Joel Brockner et al., Factors Affecting Entrapment in Escalating Conflicts: The Importance of Timing, 16 J. RES. PERSONALITY 247, 250-55 (1982)
194. showing that experimental participants for whom costs of waiting were embedded in longer explanation spent significantly more time waiting than did participants for whom costs were presented explicitly.
195. infra notes 111-21 and accompanying text (discussing employer retaliation).
196. Jolls, Sunstein & Thaler, supra note 2, at 1524 (describing and explaining ''overoptimism'').
197. Brockner et al., supra note 99, at 250-55 (showing that experimental participants who were presented with costs of waiting after they had begun waiting did not significantly differ in time spent waiting from participants who were not presented with costs at all).
198. Cf. BROCKNER & RUBIN, supra note 84, at 7 (''Entrapment can and often does lead to irrational decision making....'').
199. See supra Part II.A (discussing escalation theory and its application to grievance procedures).
200. Swann, supra note 91, at 68.
201. Harry Graham & Brian Heshizer, The Effect of Contract Language on Low Level Settlement of Grievances, 30 LAB. L.J. 427, 431 (1979) (discussing interviews with union and management officials). These findings may also be due to the sunk cost effect.
202. See infra text accompanying note 131 (concluding further research is needed to distinguish effects of escalation and sunk costs on grievants).
203. Judith L. Catlett & Edwin L. Brown, Union Leaders' Perceptions of the Grievance Process, 15 LAB. STUD. J. 54, 56 (1990). This ''wisdom'' may also be the product of a selection effect. Employees may be more likely to appeal grievances that they feel strongly about, so managers may believe that grievances become more difficult to settle at higher levels because, at higher levels, managers adjudicate those grievances about which employees care most.
204. See DAVID LEWIN & RICHARD B. PETERSON, THE MODERN GRIEVANCE PROCEDURE IN THE UNITED STATES 91 (1988) (reporting on survey of union employees finding that employees perceived grievances settled at higher levels as less equitable).
205. See supra note 31 and accompanying text (arguing employers adopted grievance procedures so that employees would not pursue complaints externally).
206. Edelman, Uggen & Erlanger, supra note 22, at 429-32.
207. Mary P. Rowe & Michael Baker, Are You Hearing Enough Employee Concerns?, HARV. BUS. REV. May 1, 1984, at 129.
208. Lewin, Empirical Analysis, supra note 12, at 839-40.
209. Id. at 839-41;
210. Lewin, Nonunion Firm, supra note 14, at 488-91 (finding similar results for rates of promotion). Similar results were found in research examining union firms.
211. David Lewin & Richard B. Peterson, Behavioral Outcomes of Grievance Activity, 38 INDUS. REL. 554, 557-59 (1999).
212. Lewin, Empirical Analysis, supra note 12, at 839-41;
213. Lewin, Nonunion Firm, supra note 14, at 488-91 (finding similar results). This result was not found in a study of union firms.
214. Lewin &Peterson, supra note 113, at 559 (finding that in one year studied, there were no significant differences, and that in other year studied, employers were significantly more likely to terminate nongrievants than grievants). These results can partially be explained by union contracts, which almost always provide that employees can be terminated only for just cause, thereby limiting employers' ability to retaliate through terminations.
215. BUREAU OF NAT'L AFFAIRS, supra note 19, at 7 (finding ninety-seven percent of union contracts contain just-cause provisions or restrict terminations to reasons enumerated).
216. Lewin, Empirical Analysis, supra note 12, at 839-41;
217. Lewin, Nonunion Firm, supra note 14, at 488-91 (finding similar results).
218. Lewin & Peterson, supra note 113, at 557-59, for similar results in a study of union firms.
219. Lewin, Empirical Analysis, supra note 12, at 840-41;
220. Lewin, Nonunion Firm, supra note 14, at 488-91 (finding similar results).
221. Lewin & Peterson, supra note 113, at 558-59, for similar results in a study of union firms.
222. Lewin, Nonunion Firm, supra note 14, at 491-93;
223. Lewin & Peterson, supra note 113, at 560-61 (finding similar results in rates of promotion and performance ratings in study of union firms). However, nonunion employees who appealed their grievances tended to have higher attendance than did employees who did not appeal, Lewin, Nonunion Firm, supra note 14, at 492, while in union firms,
224. Lewin & Peterson found significant effects in the opposite direction, Lewin & Peterson, supra note 113, at 560-61.
225. Lewin, Nonunion Firm, supra note 14, at 493.
226. Lewin & Peterson, supra note 113, at 560-61, for similar results in a study of union firms.
227. Lewin, Nonunion Firm, supra note 14, at 493 (finding significant difference in two of three firms studied).
228. Lewin & Peterson, supra note 113, at 560-61, for similar results in a study of union firms.
229. See supra note 111 and accompanying text.
230. Casey Ichniowski, The Effects of Grievance Activity on Productivity, 40 INDUS. & LAB. REL. REV. 75, 81 (1986).
231. Brian S. Klaas & Angelo S. DeNisi, Managerial Reactions to Employee Dissent: The Impact of Grievance Activity on Performance Ratings, 32 ACAD. MGMT. J. 705, 706 (1989).
232. David Lewin & Karen E. Boroff, The Role of Loyalty in Exit and Voice: A Conceptual and Empirical Analysis, 7 ADVANCES INDUS. & LAB. REL. 69, 71 (1996) (arguing that prior research may not have fully accounted for benefits of grievance procedures because it did not distinguish between employees who had and had not perceived unfair treatment).
233. Julie B. Olson-Buchanan, Voicing Discontent: What Happens to the Grievance Filer After the Grievance?, 81 J. APPLIED PSYCHOL. 52, 59 (1996). Olson-Buchanan found no significant difference between filers and non-filers in terms of desire to continue working.
234. Id. at 61.
235. Olson-Buchanan's experimental participants' ''job'' consisted of three editing tasks. After the first task, the participants were given a performance evaluation and were paid in lottery tickets. Half of the participants were given the opportunity to file a grievance contesting the number of tickets they received. After the second task, participants were informed whether they had won their grievance; those who won-half of the grievance filers-were given additional lottery tickets.
236. Id. at 56-57.
237. Id. at 61.
238. Olson-Buchanan created a performance measure using the number of errors the participants overlooked, identified accurately, attempted to correct, and corrected accurately.
239. Id. at 57.
240. supra notes 122-24 and accompanying text (summarizing inequity hypothesis).
241. Olson-Buchanan, supra note 125, at 59-60. Olson-Buchanan manipulated cause-fordispute by having a confederate sign into the study at the same time as each participant. After the first task, the experimenter-acting as the manager''-gave the participant and confederate equally positive performance reviews, but paid the participant five lottery tickets and the confederate seven tickets; participants had previously been told that the average number of tickets earned was ten. In the no-cause-for-dispute condition, participants and confederates were both paid ten tickets.
242. Id. at 57.
243. This variable significantly affected whether participants believed that they had reason to complain to management.
244. Id. at 58.
245. However, it is possible that perceived cause-for-dispute may have been responsible for some difference in performance between grievants and nongrievants because employees who grieved may have believed that they had greater cause to complain than did those who failed to grieve.
246. Grievants did not learn the outcome of their complaints until after the second task, but performed worse than nongrievants during the second and third tasks.
247. Id. at 59.
248. Id. at 62.
249. See supra note 79 (explaining sunk cost effect).
250. BROCKNER and RUBIN, supra note 84, at 151 (suggesting that entrapped decision makers acquire ''tunnel vision,'' losing focus on other pursuits).
251. See supra notes 111-17 and accompanying text.
252. Lewin, Nonunion Firm, supra note 14, at 492-93.
253. Lewin &Peterson, supra note 113, at 560-61, for similar results in a study of union firms.
254. See supra notes 79-89 and accompanying text (explaining escalation effect).
255. See supra Part I.B.2 (presenting judicial endorsement of grievance procedures).
256. See supra note 117 and accompanying text.
257. See supra note 108 and accompanying text.
258. See supra Part I.B.
259. See supra Part II.A.
260. See supra Part II.B.2 (reporting research showing negative effects of grieving for grievants).
261. David W. Ewing, Who Wants Employee Rights?, HARV. BUS. REV., Nov. 1, 1971, at 155 (finding eighty-eight percent of respondents wanted ability to present complaints to management);
262. RICHARD B. FREEMAN & JOEL ROGERS, WHAT WORKERS WANT 40-41 (1999) (finding, in national survey, that majority of employees asserted that workplace problems would be solved more effectively if employees had some say in how they were addressed).
263. Richard Freeman and James Medoff, building on Albert Hirschman's exit-voice model,
264. ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970), proposed that when employees believe that they have been treated unfairly, they file grievances as an alternative to exiting the firm.
265. RICHARD B. FREEMAN & JAMES L. MEDOFF, WHAT DO UNIONS DO? 105 (1984) (explaining how grievance procedures reduce quit rates). Relatedly, the procedural justice hypothesis,
266. supra note 38, suggests that because grievance procedures allow employees to voice their concerns, employees will perceive these procedures as fair, Olson-Buchanan, supra note 125, at 54, and therefore be more accepting of employer de cisionsresulting from the procedures, Feuille & Delaney, supra note 5, at 193.
267. Brian S. Klaas, Determinants of Grievance Activity and the Grievance System's Impact on Employee Behavior: An Integrative Perspective, 14 ACAD. MGMT. REV. 445, 452 (1989).
268. Lewin, Conflict Resolution, supra note 8, at 217; Panken, supra note 31, at 43;
269. Richard B. Peterson & David Lewin, The Nonunion Grievance Procedure: A Viable System of Due Process?, 13 EMP. RESPS. & RTS. J. 1, 3 (1990).
270. Olson-Buchanan, supra note 125, at 58-59.
271. Casey Ichniowski & David Lewin, Grievance Procedures and Firm Performance, in HUMAN RESOURCES & PERFORMANCE OF THE FIRM 159, 177-79 (Morris M. Kleiner et al. eds., 1987) (finding union and nonunion hospitals with grievance procedures had significantly lower turnover than nonunion hospitals without grievance procedures).
272. Ichniowski, supra note 122, at 86.
273. supra notes 39-44 and accompanying text (explaining how due process necessitates opportunity to challenge and appeal government actions).
274. McMunigal, supra note 89, at 655 (''[R]ush to judgment and escalation of commitmentcan turn witnesses, police officers, and prosecutors into unwitting contributors to a wrongful conviction when they form an early opinion about a person's guilt and then refuse to look for or consider later evidence inconsistent with that opinion.'').
275. Birke and Fox, supra note 88, at 23-24.
276. Robert E. Emery, David Sbarra & Tara Grover, Divorce Mediation: Research and Reflections, 43 FAM. CT. REV. 22, 34 (2005) (''[The] adversarial route [to dispute resolution]... can cause severely strained relationships to deteriorate further, perhaps irreparably.'');
277. Margaret S. Herrman, Patrick C. McKenry & Ruth E. Weber, Mediation and Arbitration Applied to Family Conflict Resolution: The Divorce Settlement, 34 ARB. J. 17, 18 (1979) (''The use of an adversarial model to reach a settlement usually increases trauma and escalates conflict.''). Not all of the conflict can be attributed to escalation: The mere conceptualization of a party as an adversary likely increases hostility toward that party.
278. William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming..., 15 LAW & SOC'Y REV. 631, 641 (1981) (''[L]itigation may intensify the disputant's moral judgment and focus blame.'').
279. Susan N. Gary, Mediation and the Elderly: Using Mediation To Resolve Probate Disputes over Guardianship and Inheritance, 32 WAKE FOREST L. REV. 397, 428 (1997). This entrenchment could also be attributed to the sunk cost effect, a phenomenon related to escalation. See supra note 79 (describing sunk cost effect);
280. Adam J. Hirsch, Evolutionary Theories of Common Law Efficiency: Reasons for (Cognitive) Skepticism, 32 FLA. ST. U. L. REV. 425, 431 (2005) (''[T]he sunk-cost effect could trigger irrational bidding wars for favorable outcomes, as adversaries seek to protect sums they have already invested to win the case.'').
281. Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. REV. 1031, 1033 (1975) (''Trials occur because there are questions of fact. In principle, the paramount objective is the truth.'');
282. Rudolph J. Gerber, Recommendation on Domestic Relations Reform, 32 ARIZ. L. REV. 9, 11 (1990) (''Adjudication works best when the object is to determine past conduct and to make a judgment concerned only with the present consequences of past behavior.'').
283. supra notes 32-37 and accompanying text (explaining employer goals in implementing grievance procedures).
284. supra Part I.B.2 (presenting Faragher and Ellerth affirmative defense and employer defense to punitive damages);
285. supra notes 52-53 and accompanying text (citing favorable judicial citations of grievance procedures in wrongful termination actions).
286. See supra note 105 and accompanying text (reporting that grieving intensifies employees' feelings about their grievances);
287. supra note 110 and accompanying text (finding grievance procedures generally fail to insulate employers from external complaints).
288. See supra Part II.B.2 (describing research showing negative effects of grieving for grievants).
289. Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225, 1294 (1998) (''The adversarial system implicitly presumes that the contestants deal at arm's length, or at least that they will not resume an intimate relationship.'').
290. Gerber, supra note 154, at 15.
291. Gary, supra note 153, at 428.
292. Patricia L. Winks, Divorce Mediation: A Nonadversary Procedure for the No-Fault Divorce, 19 J. FAM. L. 615 (1981).
293. Ronald Chester, Less Law, but More Justice?: Jury Trials and Mediation as Means of Resolving Will Contests, 37 DUQ. L. REV. 173, 176-77 (1999);
294. Gary, supra note 153.
295. Diane E. Hoffman, Mediating Life and Death Decisions, 36 ARIZ. L. REV. 821 (1994).
296. Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (1997).
297. Thomas C. Galligan, Jr., Extra Work in Construction Cases: Restitution, Relationship, and Revision, 63 TUL. L. REV. 799, 871 (1989) (advocating for mediation in construction contractor disputes).
298. Ann C. Hodges, Mediation and the Americans with Disabilities Act, 30 GA. L. REV. 431 (1996) (recommending mediation in employer/employee disputes under Americans with Disabilities Act).
299. See supra notes 81-84 and accompanying text for a discussion of self-justification.
300. BROCKNER and RUBIN, supra note 84, at 217.
301. Dean G. Pruitt & Douglas F. Johnson, Mediation as an Aid to Face Saving in Negotiation, 14 J. PERSONALITY & SOC. PSYCHOL. 239, 239 (1970) (''[M]any people see concessions in negotiation as a sign of their own personal weakness.... But if a mediator suggests that a concession be made,... a negotiator can rationalize a concession by telling himself that he is not being weak but rather intelligent.... [T]he mediator helps him save face with himself.'').
302. BROCKNER & RUBIN, supra note 84, at 217.
303. Lisa Blomgren Bingham et al., Dispute System Design and Justice in Employment Dispute Resolution: Mediation at the Workplace, 14 HARV. NEGOT. L. REV. 1, 23 (2009).
304. Id. at 13.
305. Id. at 23.
306. Id. at 13-14.
307. See supra notes 81-84 and accompanying text.
308. Niro Sivanathan et al., The Promise and Peril of Self-Affirmation in De-escalation of Commitment, 107 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 1, 3 (2008). The affirmations should not be related to people's ability as decision makers because such affirmations may increase the perceived self-threat of choosing a losing course of action.
309. See id. at 8-11 (finding that relative to participants who did not engage in affirmations, participants who affirmed their ability as decision makers exhibited significantly more escalation, and participants who affirmed attribute unrelated to decision making, such as creativity, exhibited significantly less escalation).
310. Id. at 6-8.
311. For an overview of transformative mediation,
312. ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994).
313. Id. at 85-89.
314. Id. at 89-94, 97.
315. Robert A. Baruch Bush, Handling Workplace Conflict: Why Transformative Mediation?, 18 HOFSTRA LAB. & EMP. L.J. 367, 369 (2001).
316. See supra note 110 and accompanying text (finding grievance procedures generally fail to insulate employers from external complaints).
317. Bingham et al., supra note 173, at 46 (finding decrease from 14,000 complaints in1997 to 8500 in 2003 after implementation of program of transformative mediation and concluding decrease could not be attributed to any exogenous factors).
318. Lisa Blomgren Bingham, Cynthia J. Hallberlin & Denise A. Walker, Mediation of Discrimination Complaints at the USPS: Purpose Drives Practice, in ARBITRATION 2007: WORKPLACE JUSTICE FOR A CHANGING ENVIRONMENT 269, 289 (Stephen F. Befort & Patrick Halter eds., 2008);
319. Lisa B. Bingham, Why Suppose? Let's Find Out: A Public Policy Research Program on Dispute Resolution, 2002 J. DISP. RESOL. 101, 110-11 (reviewing field research finding that employees who participated in grievance mediation ''reported higher satisfaction on measures of procedural justice, control over outcome and third party fairness'' than those who participated in grievance arbitration).
320. See supra Part I.B.1 (discussing systems of complaints and appeals for public sector employees).
321. Pub. L. No. 101-552, 104 Stat. 2736 (codified as amended at 5 U.S.C. §§ 571-584 (2006)).
322. Lisa B. Bingham & Charles R. Wise, The Administrative Dispute Resolution Act of 1990: How Do We Evaluate Its Success?, 6 J. PUB. ADMIN. RES. & THEORY 383, 393-94 (1996).
323. DAVID RAUMA & DONNA STIENSTRA, THE CIVIL JUSTICE REFORM ACT EXPENSE AND DELAY REDUCTION PLANS: A SOURCEBOOK 285-98 tbl.13 (1995) (showing mediation and other alternative dispute resolution methods implemented by federal district courts for civil disputes);
324. SARAH R. COLE, CRAIG A. MCEWEN & NANCY H. ROGERS, MEDIATION: LAW, POLICY AND PRACTICE app. B (Supp. 2010) (listing mediation statutes by state).
325. E. PATRICK MCDERMOTT et al., AN EVALUATION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION MEDIATION PROGRAM: EEOC ORDER NO. 9/0900/7632/2 (2000), available at http://www.eeoc.gov/eeoc/mediation/report/index.html (follow ''IV. Background'' hyperlink).
326. See supra Part I.B.1 (describing due process procedures of formal complaints and appeals).
327. See supra notes 28-30 and accompanying text (summarizing categories).
328. Lauren B. Edelman, Stephen E. Abraham & Howard S. Erlanger, Professional Construction of Law: The Inflated Threat of Wrongful Discharge, 26 LAW & SOC'Y REV. 47, 52 (1992).
329. Carnes v. Parker, 922 F.2d 1506, 1512 (10th Cir. 1991) (''We are convinced the Hospital gave [Plaintiff] all the process to which she was entitled based on the personnel manual.... [T]he Hospital's employment manual [does not offer Plaintiff] any more procedural protection before or after termination than she received.'');
330. Meleen v. Hazelden Found., 740 F. Supp. 687, 692 (D. Minn. 1990), aff'd, 928 F.2d 795 (8th Cir. 1991) (''Plaintiff got all the procedure she was due under the employment contract. She, perhaps understandably, would like something more. But, this was a private contract; no right to constitutional due process or proof beyond a reasonable doubt existed.'');
331. Plummer v. Humana of Kan., Inc., 715 F. Supp. 302, 304 (D. Kan. 1988) (''The Handbook provided that if an employee felt [the employer] had violated its own policies, the employee's sole recourse was to use the grievance procedure.'').
332. See supra notes 54-59 and accompanying text (discussing affirmative defense to harassment litigation). As with a formal procedure of complaints and appeals, employers would need an antiharassment policy to satisfy the defense. See supra note 60 and accompanying text (discussing affirmative defense in harassment cases for employers that have antiharassment policies in place).
333. Lawton, supra note 60, at 212-13
334. ''[T]he lower federal courts have interpreted the employer's obligations [for the Faragher and Ellerth affirmative defense]... so that employers have little incentive to do anything besides promulgate policies and procedures that look good on paper. The courts concentrate on simple, quantifiable standards....'');
335. supra notes 60-61 and accompanying text (showing courts focus on presence of procedures, and whether they were administered in good faith, as opposed to scrutinizing details of procedures).
336. Karyn A. Doi, Title VII's Retaliation Jurisprudence: Litigation Despite Faragher and Ellerth, 68 DEF. COUNS. J. 83, 88-89 (2001).
337. Susan A. FitzGibbon, Arbitration, Mediation, and Sexual Harassment, 5 PSYCHOL. PUB. POL'Y & L. 693 (1999);
338. Jonathan R. Harkavy, Privatizing Workplace Justice: The Advent of Mediation in Resolving Sexual Harassment Disputes, 34 WAKE FOREST L. REV. 135, 156 (1999).