SUPREME COURT OF THE UNITED STATES

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No. 91-42

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UNITED STATES, PETITIONER v. THERESE A. BURKE, CYNTHIA R. CENTER, and LINDA G. GIBBS

on writ of certiorari to the united states court of appeals for the sixth circuit

[May 26, 1992]

Justice Souter , concurring in the judgment.

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 6, 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 ^[n.*] ) permit recovery for intangible injury. Ante, at 5-8. Back pay, 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 conditions of an employment contract: Title VII's ban on discrimination is easily envisioned as a contractual term implied by law. See Hishon v. King & Spalding, 467 U.S. 69, 74-75, n. 6 (1984) ("Even if the employment contract did not afford a basis for an implied condition that the [decision to promote] would be fairly made on the merits, Title VII itself would impose such a requirement"); Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989) ("[T]he performance of established contract obligations and the conditions of continuing employment [are] matters . . . governed by state contract law and Title VII"). Indeed, it has been suggested that "the rights guaranteed by Title VII are implied terms of every employment contract . . . ." C. Shanor & S. Marcosson, Battleground for a Divided Court: Employment Discrimination in the Supreme Court, 1988-89, 6 Lab. Law. 145, 174, n. 118 (1990) (emphasis added).

In sum, good reasons tug each way. It is needless to decide which tug harder, however, for the outcome in this case follows from the default rule of statutory interpretationthat exclusions from income must be narrowly construed. See United States v. Centennial Savings Bank FSB, 499 U. S. ____, ____ (1991) (slip op., at 10); Commissioner v. Jacobson, 336 U.S. 28, 49 (1949). That is, an accession to wealth is not to be held excluded from income unless some provision of the Internal Revenue Code clearly so entails. There being here no clear application of 26 U.S.C. § 104(a)(2) as interpreted by the Treasury Regulation, I concur in the judgment.

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Notes

* 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) (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."