Article Title

The Tort Label


Courts and commentators often label federal discrimination statutes as torts. The tort label leads to reasoning that is superficial and not transparent about its motivations and goals. Courts do not engage in nuanced discussions about the kind of reasoning they are using or the values they are prioritizing in reaching the result. Importantly, the tort label gives the appearance that the courts are engaging in a form of traditional analysis that is noncontroversial. This Article argues that multiple claims courts make about the employment discrimination statutes related to the tort label are so baseless that they do not even reach a minimal level of legitimate reasoning. Claims that a general common law exists, that core substantive words derive solely or even primarily from pure common law, or that the common law is and should be the starting point for statutory analysis are not supportable. In rejecting the automatic prioritizing of tort law, this Article challenges courts to reconcile competing sources of meaning in employment discrimination law and discuss why the court is choosing one option over others. While this method may appear to be more difficult than current tort reasoning, it is only so because the tort label suppresses many important discussions. Hopefully, jettisoning the tort label will lead to statutory analysis that is more rigorous and honestly performed.