Equal Opportunity: Federal Employees' Right to Sue on Title VII and Tort Claims
For three years, Donald Rochon experienced a systematic campaign of racial discrimination and harassment from his coworkers that extended far beyond their mutual workplace. In addition to being subjected to racially discriminatory stories regarding African Americans told by his coworkers, Rochon had his competence impugned behind his back, received hate mail and harassing phone calls, experienced assault and battery, and bore threats of death, mutilation, castration, and rape, among other abusive events.
Had Rochon worked for a private employer, there is little question that he could recover under a Title VII employment discrimination claim as well as under several state tort causes of action. The Supreme Court affirmed the nonexclusivity of Title VII’s remedies for private-sector employees in cases such as Alexander v Gardner-Denver Co and Johnson v Railway Express Agency, Inc. In these cases, the Court recognized that “the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes,” and that the “clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.”
However, because Donald Rochon worked for the Federal Bureau of Investigation, one of the first motions against him in his employment discrimination lawsuit was a motion to dismiss the tort claims as precluded by Title VII’s provisions regarding discrimination in federal employment. The basis for such a distinction is the Supreme Court’s decision in Brown v General Services Administration, in which the Court held that a black employee who filed a Title VII racial discrimination claim twelve days past the statutory deadline could not instead sue for a violation of his constitutional rights with a 42 USC § 1981 claim. The Court concluded that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.” While federal employees may, at least in theory, have previously had the right to sue under the general § 1981 statute for violations of their constitutional rights in the context of employment discrimination, the Supreme Court ruled that amendments to Title VII had foreclosed that remedy.
Courts have struggled to apply Brown to cases in which the legal claims do not overlap as they did in that case. In particular, courts have often responded in different ways to federal employees who bring both Title VII and state tort claims. The main point of disagreement concerns whether Title VII precludes state torts under Brown, or whether the torts vindicate rights that can be considered entirely distinct from Title VII. In Rochon’s case, the court denied the motion to dismiss the tort claims, holding that Title VII did not preclude such claims to the extent they were based on his “right to be free from bodily or emotional injury caused by another person.” However, the conflict over whether Brown applies to Title VII–tort cases is far from settled among various federal district and circuit courts, and cases that present these issues continue to arise. Often, though not exclusively, such cases present facts alleging serious harms done to the employee. The uncertainty as to what relief, if any, the employee may be granted is a significant problem. Indeed, the availability of relief may vary across district and circuit courts even though the employees work for the same employer—the federal government—and this presents problems of consistency and fairness. Because the federal government is the nation’s largest employer, this issue has the potential to affect hundreds, if not thousands, of people each year.
This Comment reviews the varying approaches and decisions by federal courts over whether and how federal employees can maintain both state tort claims and Title VII actions stemming from the same or substantially overlapping facts. While a few courts have held that such claims cannot proceed with a Title VII action when the claims are based on the same set of facts, most other lower courts have used a grab bag of justifications for allowing state tort claims to proceed. Such justifications include that tort law seeks to remedy something legally distinct from employment discrimination law, that at least some tort claims are highly personal and thus deserve separate treatment, that simultaneous Title VII–tort cases that do not indicate an attempt to circumvent Title VII do not fall under Brown, and that tort actions against individual federal employees do not implicate the sovereign immunity concerns of Brown. This Comment proposes to resolve that split with a presumption that the state tort claims can proceed. It reaches this conclusion through a reexamination of the legislative history of the Equal Employment Opportunity Act and the implied-repeal doctrine in federal law.
However, distinguishing torts that do not vindicate substantially separate rights from employment discrimination is also an important part of the inquiry. Congress chose to amend Title VII to include a cause of action for federal employees largely based on its understanding that such employees could not obtain relief for employment discrimination due to the government’s sovereign immunity. Federal employees could sue the government in tort under the Federal Tort Claims Act (FTCA), however. This raises important questions about the interplay of each act given the importance of strictly construing waivers of sovereign immunity. This Comment proposes to distinguish these torts with a test that assesses whether the tort in question is serving as the functional equivalent of an employment discrimination claim. Such an inquiry will add clarity to the existing case law, which has unsuccessfully attempted to apply more formalistic tests to determine whether the tort causes of action vindicate distinct legal rights. By asking whether the cause of action serves functionally the same purpose as a Title VII employment discrimination claim, courts can more clearly balance the congressional goals of providing federal employees with substantially similar remedies as private employees without overextending the federal government’s waivers of sovereign immunity for Title VII and state torts.