70 Am. U. L. Rev. 1879 (2021).
* Professor of Law and Ethics, Gabelli School of Business, J.D., 1977, University of Toledo School of Law; M.A., 1971, University of California, Long Beach; B.A., 1969, University of New York at Binghamton. Thanks to my wife, Jean, the Olympian Law Librarian, whose research always wins gold.
Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate-impact law imposes strict liability on employers for using facially neutral employment practices that have a disproportionately adverse effect on a protected class.
This Article proposes following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The very language of Title VII provides the means to rectify this deficiency by suggesting the duty, causation, and injury elements of a claim of negligent disparate impact. Following the tort analogy, negligent-disparate-impact claims would provide a more expansive array of remedies than those that are available under the current theory of disparate impact. Specifically, compensatory damages and a broad spectrum of equitable remedies would be available to victims of negligent disparate impact. In keeping with the negligence model, this Article then suggests how to adapt the business-necessity defense and the less discriminatory alternative doctrine to negligent-disparate-impact theory.
This Article concludes by pointing out the benefits of recognizing this claim. First, victims would be entitled to remedies that fit the level of wrongdoing. Enhanced remedies would incentivize victims to seek redress and spur employers to cleanse their workplaces of discriminatory practices. Equally important, recognition of a claim for negligent disparate impact would reaffirm federal law’s dedication to achieving equal employment opportunity.