Sandra Sperino

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.

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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.

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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. 

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

Three fairly recent Supreme Court cases illustrate a change in the way that tort law is invoked in discrimination cases:  Gross v. FBL Fin. Servs., Inc., Staub v. Proctor Hosp., and University of Texas Southwestern Medical Center v. Nassar. In these three cases, the use of tort law commands a majority of the Court.  The use of tort law is also tied to textual claims, where certain words or concepts in discrimination law are directly interpreted through the lens of tort law.

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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).

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