Negligent Discrimination

Abstract

Over the past twenty [now forty-five] years the Supreme Court has articulated two primary theories of employment discrimination under Title VII of the 1964 Civil Rights Act (Title VII). The two theories can be analogized to two of the three prevalent doctrines of common law tort-intentional tort and strict liability. This article sets forth the basis, in current law and in social psychology, for a third theory of Title VII liability, analogous to the third major doctrine of tort law, the doctrine of negligence. My purpose is both to demonstrate that much employment discrimination is the result of tortuous acts that are most appropriately described as negligent, and to reveal that the existing law of employment discrimination, while eschewing the term negligence, frequently incorporates the doctrine.

Note: This 1992 article predates the SSRN, and is re-published here to improve its accessibility.

Keywords: Employment discrimination, Title VII, 1964 Civil Rights Act, Negligence, Intent