Document Type

Article

Publication Date

2014

Abstract

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court cases, with less attention paid to big picture questions. For its part, torts scholarship still has relatively little to say about social equality or harms related to discrimination, despite the recent growth in tort theory.

This Symposium is a product of our conviction that the time is ripe for serious consideration of the intersection of these two fields, owing principally to recent developments in the U.S. Supreme Court. In 2011, the Court expressed its view that when Congress created "a federal tort" through enacting Title VII, it "adopt[ed] the background of general tort law." Three years later, the Court reiterated that it regards Title VII as a statutory tort. In a 5-4 opinion adopting the "but-for" causation test for use in retaliation cases, the majority declared that tort rules should be treated as "the default rules [that Congress] is presumed to have incorporated, absent an indication to the contrary . . . ."