Discrimination and Outrage: The Migration from Civil Rights to Tort Law

Abstract

It is not always appreciated that proven discrimination on the basis of race or sex may not amount to a tort and that even persistent racial or sexual harassment may not be enough to qualify for tort recovery. This Article explores the question of whether discriminatory and harassing conduct in the workplace is or should be considered outrageous conduct, actionable under the tort of intentional infliction of emotional distress. In recent years, courts have taken radically different approaches to the issue, from holding that such claims are preempted to treating the infliction tort as a reinforcement of civil rights principles. The dominant approach views tort claims as mere gap fillers that should come into play only in rare cases that do not fit comfortably under other recognized theories of redress.

To place the current approaches in perspective and determine the proper location for harassment claims, this Article analyzes the respective domains of torts and civil rights, discussing the prototypical harms and animating philosophies behind the two regimes. It provides a history of the intentional infliction tort - with particular emphasis on how early courts and commentators treated issues of gender, race, and sexuality - and explains a new scholarly turn toward universalism and protection through common law. The Article identifies major innovations in the development of the hostile environment claim to ascertain which basic principles could be transported to tort law. This Article concludes with a critique of the gap filler approach and an argument for adapting the limited migration approach of the new Restatement of Torts to allow emerging norms from civil rights to influence the adjudication of tort claims.

Keywords: employment discrimination, workers' compensation, Title VII

JEL Classification: J15, J16, J71, J78, K13, K31