Discrimination Harassment Retaliation

Because an individual is employed by an At Will Employer and basically no explanatin is necessary for an employee's severance fromm service, is it possible to challenge a lay off using Tort Law? Can Tort Law be used to challenge discriminatory, harassing or retaliatory practices at the workplace that resulted in a wrongful termination?

1 answer  |  asked May 9, 2005 12:56 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Challenging Discrimination using Common Law Tort Theories

The word "tort" is an old French word meaning twisted. The term "tort law" refers to a body of mostly judge-developed law that has developed over centuries that allows a person who is injured by the conduct of another to sue that other person for compensation for the injuries.

There are two major divisions in tort law: negligence and intentional torts. Negligence refers to situations where one person injures another not because that person intends to injure the other person, but causes an unintentional injury because that person has either done something or has failed to do something that an otherwise "reasonably prudent person" would have not done or would have done. The key is that one person has failed to act in a generally acceptable manner. One example of a negligence claim is a lawsuit based on a car accident.

In intentional torts, injury need not be intended, but the act causing injury needs to have been intended. An example of an intentional tort is battery, when one person touches another in an offensive manner, for example by punching another person.

Before there were anti-discrimination laws, people who experienced discrimination attempted to use the tort laws to address the discriminatory conduct. It didn't work very well because of the limitations on tort law. The result of the inadequacies of the tort laws was the anti-discrimination laws.

So, to answer your question, you can still use tort law to address things like discrimination, harassment or retaliation, but it usually doesn't work. There are exceptions, but, for the most part, the tort laws are no substitute for the anti-discrimination laws, as limited as the anti-discrimination laws are.

posted by David M. Lira  |  May 9, 2005 4:49 PM [EST]

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