Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.
There are several reasons why it is hard to use tort law to define discrimination concepts. The first reason is a textual one. Any judge who espouses a strongly textual philosophy should have a hard time claiming that tort law specifically defines terms in Title VII. Why? Title VII is not structured like a typical common law tort. More importantly, Title VII does not use the language of common law torts.
Most torts are structured in a particular way. They have a common set of elements that define the primary contours of the cause of action. For example, negligence is typically defined with four elements: breach of a duty causing injury.
Title VII does not look like this. Its primary operative language reads as follows:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (2006).
The Supreme Court has defined this language as creating several different ways of proving discrimination: (1) individual, intentional discrimination claims; (2) pattern or practice claims; (3) harassment; and (4) disparate impact. In each instance, the Supreme Court created a test to flesh out each of these ways of thinking about discrimination. Each category of discrimination has its own proof structure. There is not one set of elements that cuts across all of these ways of thinking about discrimination. When the Supreme Court created the various proof structures it did not rely on tort law.
More importantly, the discrimination statutes do not use tort terms of art. The main operative provisions of Title VII do not use the words intent, factual cause, proximate cause, or damages, which are key words used in tort causes of action. Congress could have easily chosen tort-like words when it created Title VII. It did not. Nonetheless, in recent cases, the Supreme Court has claimed that Congress intended the words in Title VII and the ADEA to derive from tort law.