In Gross, the Court explained tort law in a narrow way. This cramped explanation ignores the menu of options tort law provides courts in dealing with causation issues. These options include (1) lowering the importance of causation in intentional tort analysis; (2) providing alternate ways to establish cause, such as “but for” and substantial factor cause; and (3) allowing for the burden of proof to transfer to the defendant in some instances.
But, there is an even more problematic aspect to the case. The Court never explained why its reach to tort law makes sense in the first place. Gross is a good example of a case that doubles down on formalism. First, it purports to use a textual analysis. Second, it uses tort law as its dictionary for its textual analysis.
As discussed in earlier posts, this textual analysis is incorrect in that tort law does not use the words “because of” to mean one particular kind of causation. Nor do these words signal which party bears the burden of establishing causation. Leaving this textual criticism aside, the larger question is why tort law should ground questions about discrimination.
In future posts, I will discuss the disconnect between tort law and discrimination law in greater detail. For now, I raise two points. First, tort law and the common law were inadequate to address workplace harms. This is why many innovations in workplace law are statutory. Tort law did not adequately handle physical injuries to workers. Legislators enacted workers’ compensation statutes. Even though discrimination was a large societal problem, tort law and the common law did not create an answer that adequately addressed it. Rather, states and Congress enacted statutes prohibiting workplace discrimination. It is odd for the Supreme Court to rely heavily on tort common law when that same tort common law proved unable to adequately respond to workplace problems.
Second, there is no evidence that Congress intended to rely on the common law or tort law when it enacted the federal discrimination statutes. Discrimination claims do not contain the same elements as tort claims. For the most part, Congress did not even use typical tort language within these statutes.