'I Didn't Mean it that Way!': Racial Discrimination as Negligence

Abstract

In this paper, I argue that properly analyzed, the tort of negligence offers a more effective means of addressing racial injury than does a specific tort of intentional discrimination. The most common racist acts are subtle and cause indirect harm, characteristics that intentional torts are not designed to address. Furthermore, because causing harm through negligence is less stigmatizing than intentionally inflicting harm, courts are more likely to acknowledge the actual injury and provide for redress if the action is framed in negligence. Finally, establishing a tort of negligent racial discrimination would be well within the recognized jurisdiction of common law courts to develop the common law on an incremental basis and would be consistent with the Supreme Court of Canada’s decision in Bhadauria. After outlining the advantages of using a negligence framework to address racial injury, I set out the elements of a potential tort of negligent discrimination, highlight the challenges of developing and applying a tort of this nature and suggest how these challenges may be overcome. Ultimately, I conclude that even though intentional torts may appropriately deal with racist taunts and overtly racist acts, the widespread racism in North American culture, including systemic racism, is addressed more effectively through the negligence framework.

Keywords: tort of negligence, racial, injury, intentional discrimination, racist, harm, courts, common law courts, Supreme Court of Canada, Bhadauria, intentional torts, systemic racism