Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.
In the discrimination context, the Supreme Court has declared that when Congress creates a federal tort it adopts the background of general tort law. One reason that it is difficult to apply traditional tort law to discrimination cases is that there is no such thing as “general” tort law. Tort law may use similar words in different torts, but these words often have different meanings, depending on the tort to which they are attached. Many tort doctrines differ depending on the underlying pocket of obligation being considered.
A non-exhaustive list is helpful. Factual and legal cause have different iterations and importance, depending on whether the underlying tort is characterized as an intentional tort or negligence. Contributory negligence is a defense to negligence claims, but not usually to intentional torts. Punitive damages are available for certain kinds of torts and not for others. Contribution rules are often affected by the types of torts at issue.
Whenever the Supreme Court claims that it is applying the common law to the discrimination statutes, it has already made important choices about which parts of the tort common law should be invoked. It claims to use general common law, but it has actually chosen specific parts of the tort common law to apply.