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Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Ohio St. L.J. (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.

In the first part of the paper, Professor Chamallas looks at the definition of “employer” under the statute. She explains how agency principles have helped define this term over time. Professor Chamallas undertakes a historical review of this definition, and she explains the importance of the role of the common law in the development of the definition of “employer” under Title VII. The paper further examines the Supreme Court’s well known and controversial employer liability decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, exploring the role these sexual harassment cases have had in shaping employment law through common-law agency principles. In particular, the paper examines the impact these cases have had on the development of vicarious liability and negligence theory in hostile work environment cases. Professor Chamallas discusses how the Supreme Court’s use of the Restatement (Second) of Agency in these cases was instrumental in establishing the negligence and strict liability standards for Title VII cases.

The paper does an outstanding job of examining the Supreme Court’s development of these standards, and explores how Title VII cases have been redefined as “statutory torts.” Professor Chamallas explains the difficulty of “predicating Title VII on a negligence standard.” She also looks at how the use of strict liability standards has negatively impacted Title VII cases. The paper further outlines the existing narrative of these cases: violations of Title VII are essentially statutory torts that can—and should—be interpreted through tort law principles.

Professor Chamallas takes issue with this narrative, and explains why agency law is an inappropriate vehicle for defining employer liability in employment discrimination cases. She explains the important role of dual liability in tort law and notes the critical distinction with Title VII claims, which can be pursued exclusively against the employer. The paper further explores the structural differences between Title VII and tort law with regard to the identity of the plaintiffs. In this regard, the paper undertakes a historical review of American law on the issue. And, Professor Chamallas examines how the “fellow servant rule” has played an important role in this analysis. The paper further looks at workers’ compensation laws and their impact on employer liability. From this historical review, Professor Chamallas concludes that we should “import the lesson that the common law has definitively proven to be inadequate when it comes to employee rights. There is really little of value to borrow here.”

Professor Chamallas explains why the prevailing narrative of the role of tort law in employment cases is sorely misplaced. She sets forth a differing view, explaining how the creation of Title VII was necessary given the inadequate relief available to workers through the private law. By providing an alternative “story” on the relationship between Title VII and tort law, she beautifully “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules” in employment discrimination cases.

In the final section of the paper, Professor Chamallas concludes by recommending legislative changes to Title VII. In particular, she advocates that employers should be held accountable for any discriminatory acts of their workers, “free of any restrictions.” This bold proposal would simplify employment cases and “restor[e] the enterprise liability scheme contemplated” by the original statute. On a more practical level, this proposal “would provide a reasonable incentive for employers to take the steps necessary to deter discrimination.”

The proposal Professor Chamallas offers here is important and should be closely analyzed by the legislature and academic literature. The paper does a superb job of outlining a “simple” proposal that would help remedy this complex and confusing area. Title VII and tort law have become almost hopelessly intertwined. In this brilliant paper, Professor Chamallas provides a clear path to unraveling the existing problems.

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Cite as: Joseph Seiner, Title VII and Tort Law: A New Perspective, JOTWELL (October 27, 2014) (reviewing Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Ohio St. L.J. (forthcoming), available at SSRN),