Wednesday, November 28, 2018
Relevant to today's legal debate re: #MeToo. Adopting a tort construct for sexual harassment claims might also mean changing the "reasonable person" standard to define the aggressor rather than the victim.
Marcia McCormick, Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination Claims, 76 Ohio State Law Journal Furthermore (2015)
Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort, makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases, even having gone so far as to have called employment discrimination statutes federal torts. This development has created significant concern among scholars, including Professor Sperino herself.
Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a novel approach: she takes the Court at its word, spinning out how embracing tort concepts and tort methodology would transform discrimination law. In sum, she explores how using tort concepts could “clarify the roles of intent and causation in discrimination analysis, [should] alter the way courts conceive intent, [should] lower the harm threshold for some sexual harassment cases,” and would transform current approaches to statutory interpretation, allowing the law greater “flexibility to respond to changing circumstances.” This response essay applauds Professor Sperino’s work in this area, her suggestion of a silver lining in a problematic trend, and the roadmap she lays out for a more positive trajectory. At the same time, I worry that she is unlikely to succeed because the actors she relies upon to effect the changes she projects are unwilling to do so.