‘Title VII and Tort Law: A New Perspective’

Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Ohio State Law Journal (forthcoming), available at SSRN. In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases – it provides a workable remedy for resolving the issue …” (more)

[Joseph Seiner, JOTWELL, 27 October]

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