Robinson v. Cutchin involved the nonconsensual sterilization of an African-American woman because the doctor thought that she had enough children. Although unconsented to medical treatment presents a traditional tort claim for battery, the trial judge dismissed this claim because he considered the sterilization neither physically harmful nor offensive. The rewritten feminist opinion draws on the history of involuntary sterilization of women of color to conclude that such conduct is inherently outrageous and causes serious physical and emotional harm, and thus should be redressed as both a battery and as intentional infliction of emotional distress, with punitive damages. The feminist opinion highlights the ways the actual judgment distorts both the law and the reality of women’s experience of harm. The accompanying commentary situates this case in the history of racially based involuntary sterilization and both medical and judicial dismissiveness of the seriousness of the harm, and thus sheds light on how tort law has failed to deter this abusive practice.

Guthrie v. Conway exemplifies the reluctance of many courts to allow victims of workplace sexual harassment to sue in tort for intentional infliction of emotional distress (IIED). The employer in Guthrie escaped liability because the court did not regard numerous incidents of harassment as sufficiently “outrageous” conduct to justify tort recovery. The rewritten feminist dissent explains how courts often misuse summary judgment in hostile workplace environment cases and argues for a contextual application of the elements of IIED based on the victims’ experience. The feminist dissent would allow a jury to review the evidence in its totality, would not require the harassment to be overtly sexual to qualify as outrageous conduct, and would permit a tort claim regardless of whether the victim also had a viable claim under Title VII of the 1964 Civil Rights Act. The accompanying commentary catalogues the various techniques courts have used to exclude feminist perspectives in harassment cases and urges a greater role for tort litigation.