The Tort Label

This Article demonstrates the dangers of the tort label, using the lens of two core discrimination statutes: Title VII and the ADEA. However, the discussion has broader implications. Courts have applied the tort label to a variety of statutes and in a wide array of contexts. This Article proceeds as follows.

Part I discusses the move to tortify federal discrimination law. Parts II, III, and IV highlight serious problems with the way the courts understand, use, and apply tort law in the discrimination context. Part V discusses the stakes of the tort label, including its tendency to lead to unsatisfactory reasoning that is not supported by congressional intent or by the statutes’ text, history, or structure.