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PDFCharlie Sullivan (Seton Hall) has just posted on SSRN his article Tortifying Employment Discrimination. Here’s the abstract:
Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.
First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur.
Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine.
After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.
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