Discrimination and Outrage
Exploring the Gap Between Civil Rights
and Tort Recoveries
The connection between tort law the premier system designed to protect against civil wrongs—and civil rights is an undertheorized topic that only sporadically attracts the attention of scholars. 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. In the law school curriculum, for example, discussions of social equality tend to be confined to public law courses, such as constitutional law or employment discrimination.
For quite some time, the best candidate for situating a tort claim for discriminatory behavior has been the tort of “outrage,” or “intentional infliction of emotional distress,” as it is commonly referred to, with its key threshold requirement of proof of “extreme and outrageous” conduct on the part of the defendant. At first blush, the intentional infliction tort seems particularly well suited to capture harassment and other discriminatory harms that create hostile environments for targeted groups of workers: unlike many other tort claims, it dispenses with the need to prove physical harm and responds to an abusive course of conduct over a period of time, rather than simply to discrete harmful acts. So far, however, the use of the intentional infliction tort for this purpose has been limited and erratic. A variety of legal and cultural forces have served to keep civil rights in its place and preserve tort law for more traditionally framed dignitary harms divorced from considerations of equality.