By William R. Corbett | 62 Am. U. L. Rev. 447 (2013)
Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital. In Staub, the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or “cat’s paw”) liability. Staub was not the first case in which the Court has suggested that a federal employment discrimination law is a federal statutory tort, but it was the most express and direct statement. Moreover, the Court’s adoption of proximate cause, one of the most complicated, confusing, and criticized concepts in tort law, to analyze a prevalent issue in employment discrimination law is striking and provocative. Staub reinvigorates the debate about whether the Court and courts have imported too much tort law into employment discrimination law—the debate about the “tortification” of employment discrimination law.
Most discussions of tortification of discrimination law trace the origin to the Supreme Court’s discussion of torts causation standards in Price Waterhouse v. Hopkins. However, it actually began much earlier. The ubiquitous pretext analysis, developed by the Court to analyze individual disparate treatment cases in McDonnell Douglas Corp. v. Green is a thinly veiled version of the tort doctrine res ipsa loquitur. Although there have been numerous critiques of the McDonnell Douglas analysis that have called for its abrogation, none have exposed it as the much-maligned tort doctrine. Evaluating McDonnell Douglas as res ipsa helps explain its weaknesses and shortcomings. After forty years of the pretext analysis, it is time to expel it from discrimination law. Abrogating the McDonnell Douglas analysis should be a significant first step in reconsidering the tortification of employment discrimination law.