Title VII Is Not a Tort — Sandra Sperino

Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

Thank you to John and Henry for inviting me to blog here.

In several posts, I will be blogging about how federal courts are pushing federal discrimination law out of a public law model and into a more private law frame.  There are three major federal discrimination statutes: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).  Taken together, these three statutes prohibit employment discrimination based on factors such as race, sex, religion, age and disability.

In the past decade, federal courts have increasingly labeled federal discrimination statutes  as “torts.”  There has been a radical shift in the prominence and importance of tort law within discrimination jurisprudence.  The Supreme Court’s use of tort common law in discrimination cases has become more robust and automatic over time.

In several cases over the past decade, the Supreme Court has declared that it can define certain words within the discrimination statutes simply by looking to the common law of torts.  In several cases, the Court has claimed that it is appropriate to look up certain words in a Torts Restatement or in a torts treatise and then apply the resulting definition to resolve questions about how to interpret discrimination statutes. The Supreme Court now claims that discrimination statutes’ status as torts conveys specific, textual statutory meaning.

In the late 1980s, the Court noted that “common-law principles may not be transferable in all their particulars to Title VII.” By 2012, the Court declared: “[W]e start from the premise that when Congress creates a federal tort it adopts the background of general tort law.” It then automatically applied tort principles to an employment statute.

In upcoming posts, I will explain why Title VII is not a tort in any way that conveys specific, textual meaning.  The claim that Title VII is a tort ignores the history of the statute and its text.  It also unnecessarily muddies an already confusing jurisprudence and leads to odd results in what would otherwise be fairly easy cases.

As I discuss Title VII, please keep in mind that most of these arguments also hold true for the ADEA and the ADA.

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