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Symposium to focus on tort, anti-discrimination law
The Ohio State Law Journal will explore the theoretical and doctrinal affinities and clashes between tort and anti-discrimination law at a Nov. 15 symposium, “Torts and Civil Rights Law: Migration and Conflict.”
The public is welcome to attend this free symposium, which will be held at The Ohio State University Moritz College of Law. CLE credit is available. Click here to register.
Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection.
Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
Scholars at the symposium will discuss whether the connections between tort and anti-discrimination law are strong enough to justify robust use of tort principles in anti-discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analysis.
The following is a select list of some of the scholars presenting and topics they plan to address:
- Deborah Brake, professor of law at the University of Pittsburgh, will explore how concepts of tort law (employer wrongfulness, employee reasonableness, and causation) intersect with retaliation law. Specifically she will discuss how these concepts surreptitiously influence judicial decisions about what counts as “protected activity” under Title VII’s opposition clause.
- Jonathan Cardi, professor and associate dean for research and development at Wake Forest University School of Law, will discuss the parallels between tort duty analysis, the judge/jury question, and proximate cause analysis in Title VII jurisprudence.
- Martha Chamallas, the Robert J. Lynn Chair in Law at The Ohio State University Moritz College of Law, will discuss differing approaches to vicarious (or institutional liability) for employee sexual abuse and harassment under tort law versus anti-discrimination law.
- William R. Corbett, the Frank L. Maraist Professor of Law at LSU Law Center, will discuss the role of tort law in filling gaps in employment termination law not adequately covered by discrimination law.
- L. Camille Hébert, the Carter C. Kissell Professor of Law at The Ohio State University Moritz College of Law, will discuss the implications of addressing sexual harassment from the perspective of tort, as a violation of dignity, as French sexual harassment law does, compared to the treatment of sexual harassment under employment discrimination law in the United States.
- Maria Ontiveros, professor at the University of San Francisco School of Law, will explore the similarities between Title VII and torts as distinct pragmatic systems both aimed at remedying human rights violations that inflict economic and dignitary harms.
- Angela Onwuachi-Willig, the Charles M. and Marion J. Kierscht Professor of Law at the University of Iowa College of Law, and Ifeoma Ajunwa, the Paul F. Lazersfeld Fellow at Columbia University, will discuss the potential intersection of tort law and genetic nondiscrimination law.
- Laura Rothstein, professor of law and distinguished university scholar at the University of Louisville Louis D. Brandeis School of Law, will discuss how torts do or do not provide an alternative vehicle for remedying disability discrimination law, focusing primarily on architectural barrier design issues, but also addressing other issues, including special education "malpractice," Tarasoff warning issues related to Sandy Hook and similar situations, and some other areas where disability law and torts can intersect.
- Anthony Sebok, professor of law at the Yeshiva University Benjamin N. Cardozo School of Law, will explore whether the loss of a chance doctrine applicable to medical malpractice cases should be imported to fashion remedies in the employment discrimination context.
- Catherine Sharkey, the Crystal Eastman Professor of Law at NYU School of Law, will explore the implications of the Supreme Court’s recent decision in Snyder v. Phelps involving First Amendment limitations on recovery for claims of intentional infliction of emotional distress and its impact on the intersection of civil rights and torts.
- Catherine Smith, associate dean of institutional diversity and inclusiveness and professor at the University of Denver Sturm College of Law, will discuss the use of tort negligence principles to hold employers accountable for failing to take precautions to guard against the risks of unconscious and implicit bias in the workplace.
- Sandra Sperino, professor of law at the University of Cincinnati College of Law, will discuss how the trends toward textualism and tortification present opportunities to expand current discrimination frameworks.
- Charles Sullivan, professor of law and director of the Rodino Law Library at Seton Hall University School of Law, will explore both the substantial advantages in terms of cross-fertilization and the substantial risks of reflexive transplantation of concepts that fit more comfortably into one legal scheme than another, with particular attention to the central concept of causation and the special needs of anti-discrimination law.
- Benjamin Zipursky, associate dean for research and the James H. Quinn ’49 Chair in Legal Ethics at Fordham University School of Law, will explore how tort and employment discrimination conceptualize and treat cases of same-sex harassment.