Academic journal article William and Mary Law Review

Discrimination and Outrage: The Migration from Civil Rights to Tort Law

Academic journal article William and Mary Law Review

Discrimination and Outrage: The Migration from Civil Rights to Tort Law

Article excerpt


It is not always appreciated that proven discrimination on the basis of race or sex may not amount to a tort and that even persistent racial or sexual harassment may not be enough to qualify for tort recovery. This Article explores the question of whether discriminatory and harassing conduct in the workplace is or should be considered outrageous conduct, actionable under the tort of intentional infliction of emotional distress. In recent years, courts have taken radically different approaches to the issue, from holding that such claims are preempted to treating the infliction tort as a reinforcement of civil rights principles. The dominant approach views tort claims as mere "gap fillers" that should come into play only in rare cases that do not fit comfortably under other recognized theories of redress.

To place the current approaches in perspective and determine the proper location for harassment claims, this Article analyzes the respective domains of torts and civil rights, discussing the prototypical harms and animating philosophies behind the two regimes. It provides a history of the intentional infliction tort--with particular emphasis on how early courts and commentators treated issues of gender, race, and sexuality--and explains a new scholarly turn toward universalism and protection through common law. The Article identifies major innovations in the development of the hostile environment claim to ascertain which basic principles could be transported to tort law. This Article concludes with a critique of the "gap filler" approach and an argument for adapting the limited migration approach of the new Restatement of Torts to allow emerging norms from civil rights to influence the adjudication of tort claims.


What was once called the "new" tort of outrage or intentional infliction of emotional distress is now well enough established to consider it a permanent fixture of the common law of torts. Its main features have recently been reaffirmed in the latest draft of the new Restatement of Torts, including the key threshold requirement that the plaintiff prove that the defendant's behavior is "extreme and outrageous." (1) Despite its secure status, however, the tort still has a curiously ambivalent quality, representing at once tort law's most expansive protection of "pure" mental disturbance, yet combined with a considerable reluctance on the part of courts to intrude upon other areas of law or to interfere with what is perceived to be an exercise of the defendant's legal rights. (2)

This ambivalence is particularly pronounced in the employment context--in cases in which employees sue their employers, supervisors, and coworkers for intentional infliction of emotional distress based on harassing, oppressive, or discriminatory behavior. In many such cases, the employee also has a cause of action for a violation of civil rights, under the Title VII federal statutory scheme and parallel state statutory actions. (3) The most obvious question arising from the juxtaposition of these two claims is whether discriminatory and harassing conduct should also be considered outrageous conduct and actionable in tort. For the most part, however, the two types of claims have evolved separately, with courts engaging in a case-by-case screening of tort claims for indicia of outrageousness, (4) while developing elaborate frameworks of proof for civil rights claims of harassment (5) and discrimination. (6) The particular focus of this Article is on the intersection of torts and civil rights law, the place where outrage and discrimination meet. It is part of a larger inquiry into the degree to which the concepts and values of civil rights law have migrated or can be expected to migrate into tort law.

From a practical perspective, the migration of legal concepts and values from civil rights to torts is important because it opens up an additional avenue for employees to seek redress for workplace injuries (7) and exposes employers in some cases to greater amounts of damages. …

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