What Does It Mean for Something to Be a Tort? — Sandra Sperino

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

Whenever I say Title VII is not a tort, I get quite a bit of pushback about this claim.  It makes sense to start this post by explaining what I mean.

There is not one fixed definition of what a tort is.  Tort law can be defined as being “about the wrongs that a private litigant must establish to entitle her to a court’s assistance in obtaining a remedy and the remedies that will be made available to her.” John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 919 (2010). Another common definition of a tort is a “civil wrong, other than breach of contract, for which the court will provide a remedy.” W. Page Keeton, et al. Prosser and Keeton on The Law of Torts 1, 2 (5th ed. 1984).

For decades, there has been a theoretical debate about whether Title VII falls within the broad definition of a tort. There are benefits and problems with placing Title VII within the umbrella of tort law.  On the negative side, scholars often worry that placing Title VII under the umbrella of tort law places it within the realm of private law when it should belong in the realm of public law. This might have important effects on how judges view the purpose of Title VII and the breadth of the remedies available.

However, if all we mean when we say that Title VII is a tort is that Title VII is a civil wrong, not solely grounded in contract law, and for which a remedy is available, then it might be fine to call Title VII a tort. (As an aside, it is worth noting that some discrimination law derives from the labor law and contracts contexts).  Calling Title VII a tort in this general sense may have the benefit of encouraging judges to interpret Title VII in a way that allows it to respond to the changing ways discrimination occurs in the workplace.

While these larger debates are important, the Supreme Court is taking a different approach for what it means for Title VII to be a tort.  What the Supreme Court means when it says that Title VII is a tort is that specific doctrines from tort law can and should be automatically imported into discrimination law.  When I say that Title VII is not a tort, what I mean is that it does not look enough like any specific, existing tort. 

As I will show in later posts, Title VII does not even fit within the general demarcations of tort law, which often divide claims into the three rough categories of intentional torts, negligence and strict liability.

Title VII is so unlike any traditional tort, that it does not make sense to automatically import concepts from other torts into Title VII.  This is not to argue that tort law has no place in statutory construction.  It provides a language for discussing competing concerns and encapsulates a wealth of prior thinking about difficult issues.  Prior theoretical and doctrinal debates in tort law are important because they help to elucidate which values should be prioritized and why. 

When I say Title VII is not a tort, what I mean is that it does not fit precisely into the mold of any traditional tort.  Calling Title VII a tort in some general sense does not help to answer the vast majority of questions that arise in discrimination cases.  The tort label is dangerous because it allows courts to claim that tort law demands particular results in discrimination cases.  This is simply not true.