United States v. Burke, 504 U.S. 229, 19 (1992)

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Cite as: 504 U. S. 229 (1992)

Souter, J., concurring in judgment

omy between contract and tort posited by the dissent, post, at 249-252, there are good reasons to put a Title VII claim on the tort side of the line. There are definite parallels between, say, a defamation action, which vindicates the plaintiff's interest in good name, and a Title VII suit, which arguably vindicates an interest in dignity as a human being entitled to be judged on individual merit. Our cases have, indeed, recognized parallels (though for different purposes) between tort claims and claims under antidiscrimination statutes other than Title VII. See Goodman v. Lukens Steel Co., 482 U. S. 656, 661 (1987) (similarity between claim under 42 U. S. C. 1981 and personal-injury claim for purposes of determining applicable statute of limitations); Wilson v. Garcia, 471 U. S. 261, 277-278 (1985) (same for 42 U. S. C. 1983). The reasons do not go solely to that one side, however. While I do not join the majority in holding that the tort-like character of a claim should turn solely on whether the plaintiff can recover for "intangible elements of injury," ante, at 235, I agree that Title VII's limitation of recovery to lost wages ("back pay") counts against holding respondents' statutory action to be "tort type." Tort actions, it cannot be gainsaid, commonly (though not invariably*) permit recovery for intangible injury. Ante, at 234-237. Backpay, on the other hand, is quintessentially a contractual measure of damages.

A further similarity between Title VII and contract law, at least in the context of an existing employment relationship, is the great resemblance of rights guaranteed by Title VII to those commonly arising under the terms and condi-*In those States that have barred recovery in tort for "intangible elements of injury," see, e. g., N. J. Stat. Ann. 59:9-2(d) (West 1982) (action against public entity or employee); Wash. Rev. Code 4.20.046(1) (1989) (action by estate of deceased), the modified action is still fairly described as one "based upon tort rights," and certainly is an "action based upon tort-type rights."

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