Discrimination and outrage: the migration from civil rights to tort law.

• Author: Chamallas, Martha

ABSTRACT

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.

INTRODUCTION

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. The advantage of torts to plaintiffs is that it offers the prospect of uncapped compensatory and punitive damages, in contrast to federal Title VII law that imposes caps on such damages (8) and state civil rights laws with similar restrictions. (9) Indeed, a recent empirical study of sexual harassment cases conducted by Professor Catherine Sharkey concluded that including state law claims for harassment has had the effect of increasing awards for sexual harassment plaintiffs, despite limitations on damages under federal law. (10)

Beyond this immediate practical impact, however, the degree of migration is also a significant index of cultural transformation, a marker of whether new understandings of categories such as "sexual harassment" and "hostile environment" have become mainstream and have altered traditional thinking about the proper domain of tort law. As one leading commentator on the subject has stated, when a court declares that a recurring type of conduct is "outrageous[,] ... it is making an official determination of the moral seriousness of that conduct." (11)

That civil rights would migrate from its "home" in constitutional and antidiscrimination law into other areas of law, such as tort law, should not be surprising. The antidiscrimination principle the principle that rejects legal expressions of racism, sexism, and similar ideologies (12)--is a widely shared cultural norm that we would expect to see reinforced in private law, particularly in the articulation of duties owed by persons who are in a position to inflict serious harm and to restrict the opportunities and potential of others. Additionally, in the last thirty years the harms of discrimination and harassment have been extensively catalogued and theorized, both in the criminal law debate over "hate" crimes (13) and through the development of various theories of discrimination under the U.S. Constitution, (14) Title VII, (15) and related statutes. What has emerged is a multifaceted injury--with both a personal and social dimension--that can more readily be transported and absorbed into preexisting bodies of law.

Predictably, however, given the strong countervailing social forces, the migration from civil rights to torts has also been vigorously resisted. (16) A variety of legal and policy arguments from preemption to renewed demands for legal recognition of "management prerogative" have been deployed to keep civil rights in its place and preserve tort law for more traditionally framed dignitary harms divorced from considerations of equality. The contemporary legal picture of the tort of intentional infliction of emotional distress reflects this struggle. There is considerable variation in treatment among the states, ranging from hefty migration in New Jersey (17) to a cutoff of tort claims in Iowa through preemption. (18) For some courts, the tort is treated as an independent cause of action that provides mutual reinforcement for civil rights and other important public policies. (19) For other courts, it is a mere "gap filler" that generally should come into play only when no other legal remedy is available. (20)

This Article traces the migration and influence of civil rights on the development of the tort of intentional infliction of emotional distress in the employment context. It builds upon a rich literature on the subject that has sprung up recently, calling for a variety of specific reforms, including changes in the courts' approach to outrageousness, more expansive common law and statutory protection against "bullying," (21) and the development of a common law of the workplace. (22) Although I start from the premise that some migration is desirable and that the development of Title VII harassment law is generally positive, my goal in this Article is principally descriptive. My interest lies in looking more deeply into the domain of tort law to see just how much has changed in the courts' basic views on outrage and its connection to discrimination in the generation or so that has elapsed since the new tort became established and civil rights law matured into its current state.

Since its inception, the tort of intentional infliction of emotional distress has been knee-deep in issues relating to gender, sexuality, and personal morality. (23) This Article describes how the tort was created in part to provide protection for vulnerable persons--often women--when older causes of action, notably assault and slander, failed to capture and respond to their injuries. (24) It chronicles the ebb and flow of feminist criticism of, and attraction to, the tort, reflecting the perennial struggle to find the right "location" for claims of sexual exploitation and demands for recognition of sexual autonomy. (25) The imprint of race is less visible in the history of the tort. In its early days, the tort principally provided a vehicle for protecting white racial privilege by allowing claims of white plaintiffs who alleged injury arising from contacts with blacks that they found objectionable. (26) After the civil rights era, the tort was deployed successfully by black plaintiffs in cases involving racial harassment (27) or threats of racial violence. (28)

These investigations into the treatment of gender and race through the intentional infliction tort suggest that the migration of civil rights into tort law has so far been limited and erratic, although aggressive attempts to abruptly halt the migration have also faltered. Although the courts have controlled the migration process, they have not often reflected on the normative significance of holding that discriminatory conduct does or does not amount to a tort. Whether an equality gloss can be placed on the tort concept of outrageousness is the critical open question at the heart of many of the recent proposals for change. The Article concludes with my reflections and hopes for this process.

Part I of this Article...