State Antidiscrimination Statutes and Implied Preemption of Common Law Torts: Valuing the Common Law

Abstract

This Article addresses whether state antidiscrimination statutes preempt common law tort claims based on unlawful discriminatory harassment. Part II of this Article categorizes and describes the different types of common law discrimination torts. Part III examines the conditions under which a particular type of common law discrimination tort should be impliedly preempted by a state antidiscrimination statute and explains why the law should distinguish between the various torts. Part IV applies the principles established in Part III to specific jurisdictions that have an antidiscrimination statute and also recognize certain common law discrimination torts. Part IV concludes with a reminder that the resolution of the preemption issue reflects the standing of the common law in our judicial and government systems. Part V completes the Article by summarizing the proposed outcome of the implied preemption question as to two specific common law torts.