One of the instrumental purposes of tort law is to deter behavior that offends community standards of reasonable care—in other words, negligent behavior.[1] What America has deemed to be reasonable behavior has changed extensively over the last 400 years. 400 years ago, American society allowed human beings to be enslaved because of their race; until the second half of the Twentieth Century, American society explicitly embraced racial segregation. Unfortunately, as evidenced by racial turmoil this year, racism continues to pervade The United States. Not all is lost though. This year, many Americans have decided to actively fight racism.[2] Could this mean that we, as a society, finally see racism as an offensive and unreasonable act? If so, how do we hold people accountable for such behavior?
One solution would be making racial discrimination a tort.[3] Title VII of the Civil Rights Act of 1964, which specifically applies to employment discrimination, is considered to be the cornerstone federal discrimination statute, but Congress did not define “what kind of causation is required to establish a violation of [Title VII].”[4] The act also did not define whether discrimination needed to be intentional to violate Title VII. After Congress passed the legislation in 1964, the Supreme Court generally did not use tort law to interpret Title VII, but in a 1989 concurring opinion in Price Waterhouse v. Hopkins, Justice O’Connor called Title VII a “statutory employment tort.”[5] Although the plurality opinion in Price Waterhouse rejected tort principles, the Supreme Court began to add tort-like elements to their Title VII opinions.[6] By 2013, the Supreme Court had implemented but-for causation in Title VII opinions, borrowing a causation standard from common law torts.[7] Although the Supreme Court seems to have adopted a tort-like causation standard for racial discrimination, it has left open the question of whether discrimination must be intentional to constitute a Title VII violation.[8] If the Supreme Court fully embraces a common law torts interpretation of Title VII, tortfeasors could be held to a negligence standard that would allow both intentional and unintentional tortious conduct to be actionable under Title VII.
Some racism is unintentional.[9] Racism has become so institutionalized in American society that some may not immediately recognize it. For these tortfeasors, it makes sense to hold them to the unintentional law of torts standard of negligence. These actors are causing harm in an unreasonable way, yet the harms they are causing may be inadvertent and likely due to unconscious bias. An example of this type of conduct occurs in hiring new employees at a company. In this scenario an employer interviews multiple candidates and decides to hire the white candidate, not because they do not want to hire a Black candidate, but because the white candidate just felt like the “right fit.” Lauren Rivera researched this phenomenon and found that in hiring committees, “interviewers weighed and judged [communication skills] . . . differently depending on the race, ethnicity, or gender of the candidates.”[10] This form of unintentional racism should offend community notions of fairness and reasonableness throughout the United States. Those that have been harmed by practices like these need to be made whole by these employers, and these employers need to be deterred from engaging in this behavior. We can simultaneously achieve both of these goals by recognizing unintentional racial discrimination as a negligence tort.
Many times, though, racial discrimination is more intentional. As an injurer’s conduct leans further towards intentionality, tort law can strengthen its deterrence power; the worse the conduct, the more unreasonable it is to the community and the more we want to make sure that the injurer does not repeat such conduct. Once racially discriminatory conduct becomes grossly negligent or reckless, tort law is empowered to dole out punitive damages. These monetary penalties not only try to make the victim whole, but also attempt to punish bad behavior so that the injurer never repeats their unreasonable conduct. Tort law has the power to create liability for unintentional and intentional bad actors. Hopefully someday soon we won’t need to worry about legal mechanisms to deter racial discrimination, but for now we need to use every tool available. Expanding tort law to include an unintentional and intentional racial discrimination cause of action will add another deterrent force to back up the antiracist cries of modern American society in the fight for racial justice.
* J.D. candidate, Columbia Law School. Bachelor of Music, Emphasis in Vocal Performance and Bachelor of Arts in Portuguese Studies, Brigham Young University. The author is grateful to the Columbia Law School faculty for providing the necessary tools to fight for racial justice.
[1] See Frederick v. City of Detroit, Dept. of St. Rys., 121 N.W.2d 918, 919 (Mich. 1963).
[2] See Adrian Florido & Marisa Peñaloza, As Nation Reckons With Race, Poll Finds White Americans Least Engaged, NPR (Aug. 27, 2020, 5:00 ET), https://www.npr.org/2020/08/27/906329303/as-nation-reckons-with-race-poll-finds-white-americans-least-engaged.
[3] See Rakhi Ruparelia, “I Didn’t Mean It That Way!”: Racial Discrimination as Negligence, 44 Sup. Ct. L. Rev. 2d 81 (2009)
[4] Sandra F. Sperino, Let’s Pretend Discrimination Is a Tort, 75 Ohio St. L. J. 1107, 1109 (2014).
[5] Id. at 1100.
[6] See id. at 1100.
[7] See id. at 1112.
[8] See id. at 1114–1115.
[9] See Lisa Burrell, We Just Can’t Handle Diversity, Harv. Bus. Rev., July–Aug. 2016, at 70, https://hbr.org/2016/07/we-just-cant-handle-diversity.
[10] Id.