In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.
This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite strong arguments to the contrary. It then shows how using tort law and textualism should clarify the roles of intent and causation in discrimination analysis, alter the way courts conceive intent, lower the harm threshold for some cases, and alter current conceptions of textualism.
Sperino, Sandra F., "Let's Pretend Discrimination Is a Tort" (2014). Faculty Articles and Other Publications. 293.