The History Problem –Sandra Sperino

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

The history of the discrimination statutes also presents a problem for interpreting them through the lens of tort law.  As mentioned in the last post, the Supreme Court has created different ways of thinking about discrimination claims.  Courts often categorize discrimination cases as falling into one of several different frameworks:  (1) individual, intentional discrimination claims; (2) pattern or practice claims; (3) harassment; and (4) disparate impact.

The Supreme Court created the frameworks for these four categories in the 1970s and 1980s.  Importantly, the Supreme Court did not strongly invoke tort law when creating any of the frameworks for discrimination cases.  For the most part, the foundational discrimination cases are not grounded in tort doctrine or theory.

Nonetheless in Gross, Staub, and Nassar, the Supreme Court heavily relies on tort law.  These recent attempts to force discrimination statutes into a torts mold are awkward because they ignore that the foundational cases in discrimination law are not based in tort law.

Importantly, federal discrimination law created a large exception to prior common law norms about the employment relationship.  At common law, the employment relationship is defined by the concept of at-will employment.  Absent a contract, at-will employment allows an employer to hire, fire, or change the conditions of employment for any reason or no reason. Each state has developed its own exceptions to at-will employment. In many states, without the existence of federal employment discrimination law or a corollary state statute, the common law would allow the employer to terminate an individual based on a protected trait, such as sex or race.

Congress meant for Title VII to create a very large exception to common law notions of at-will employment.  Since Title VII itself is a rejection of aspects of the common law, it is difficult to claim that Title VII must be interpreted through the lens of the traditional common law.

Leave a Comment