Discrimination Law and the “Tort” Label

Fair warning, this post delves a bit into technical aspects of the structure of the law but these technicalities have real impact on how claims work out so I think it is worth talking about.

The Workplace Prof Blog recently pointed out an interesting working paper on discrimination law by Sandra Sperino of the University of Cincinnati School of Law entitled The Tort Label.  While you might be sitting there wondering why in the world a paper on discrimination law bears such a title, Ms. Sperino does a terrific job of explaining how our current approach to discrimination law may actually be short-circuiting the whole point of having anti-discrimination statutes in the first place.

Discussion after the jump…

The paper starts out by demonstrating the many ways that ideas from tort law have crept into decisions under both the Age Discrimination in Employment Act and Title VII.  One of the clearest examples of this “tortification” of employment law is in the emphasis placed on “causation” in the discrimination jurisprudence.  It is hard to overstate the number of cases devoted solely to sussing out the correct level of causation for a given statute, is it contributing factor? or “but for”? or something in between? (in fact the Missouri legislature is considering a bill that would raise the level of causation required for claims of age discrimination, thereby blocking many claims).  The paper even points to a case interpreting the Uniformed Services Employment and Reemployment Rights Act (USERRA) where the court first assumes that USERRA is a tort law, and then reads “proximate cause” into the statute, even though it doesn’t appear anywhere in the language of the law.

The paper goes on to show the many ways that discrimination law differs from tort law and the effect of importing tort concepts without any critical thought.  The whole thing is definitely worth reading for anyone who is interested in not only how the law works but in thinking about how the law could work better to address discrimination.


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