Looking to Torts: Exploring the Risks of Workplace Discrimination

Abstract

Thirty years of social science research has documented that implicit bias influences individual behaviors and group-based decisions. In reliance on this research, many scholars argue that Title VII's predominant focus on discriminatory intent fails to regulate decisions influenced by implicit bias in the workplace.

This short reflection Article explores the possibility of regulating implicit bias in the workplace by cautiously turning to tort law. Caution is warranted; we should avoid treating Title VII as the equivalent of a common law tort without appreciating their different purposes and objectives. With that in mind, tort law is a logical and valuable legal field to draw from. Formally, "[t]he purpose of the law of torts is to adjust [for] losses, and to afford compensation for injuries sustained by one person as the result of the conduct of another." In reality, tort law does far more than compensate for injuries; it serves as a legal reflection of our cultural and societal values. As I explain to students, tort law is one of our most basic organizing systems for defining harms, and it is important, especially for those interested in civil rights work, to appreciate it. Further, the themes and values of tort law are inescapable in a discussion on regulating conduct outside the confines of an intentional discrimination framework.