TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, February 18, 2015

Cardi on Duty Analysis and Employment Discrimination

Jonathan Cardi (Wake Forest) has posted to SSRN The Role of Negligence Duty Analysis in Employment Discrimination Cases.  The abstract provides:

In a concurring opinion in the 1989 decision Price Waterhouse v. Hopkins, Justice O’Connor first referred to Title VII of the Civil Rights Act as a "statutory employment 'tort.'" Since then, the Supreme Court and federal courts generally have reified Justice O’Connor’s words, gradually altering the legal perception of employment discrimination legislation from its intended nature as a set of civil rights statutes aimed at ridding the nation of a pernicious social problem to a narrowly tailored provision of compensation for private wrongs. Courts have done so, in part, by importing doctrine from the common law of torts — particularly in the realm of factual causation and scope of liability — to interpret and fill supposed gaps in the statutes. This Article asserts that courts’ embrace of tort concepts runs even deeper than they have expressly stated — that courts have drawn not only upon the concepts of causation and scope of liability (proximate cause), but also engaged the question of whether employers owe a duty not to take allegedly discriminatory actions. The Article urges that use of duty reasoning is problematic for two torts-internal reasons. First, the nature of wrongfulness in employment discrimination cases is not analogous to negligence or, indeed, to any tort. It is therefore improper for courts to apply tort conceptions of wrongfulness to answer questions of liability in employment discrimination cases. Second, if employment discrimination claims are, as the Supreme Court has referred to them, statutory torts, then drawing upon common-law duty reasoning is improper, as it is an incorrect application of the law of statutory torts.

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