Tuesday, October 26, 2010

Sullivan on Iqbal and Employment Discrimination Claims

Prof. Charles Sullivan (Seton Hall) has posted on SSRN a draft of his article, Plausibly Pleading Employment Discrimination, which is forthcoming in the William & Mary Law Review. Here’s the abstract:

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. Further, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been understood while the latter makes clear that “plausible pleading” is something very different. But it also because Iqbal was, after all, a discrimination case (albeit brought under the Constitution rather than a federal statute), and its finding that the discrimination alleged there was not plausibly pled could easily be applied to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

Numerous scholars have analyzed Iqbal generally and several have addressed the application of plausible pleading to claims under the antidiscrimination laws. A respectable view is that Swierkiewicz remains good law although the commentators recognize legitimate questions about its continued vitality. This Article, while agreeing that there are readings of both Swierkiewicz and Iqbal that would permit this result, nevertheless explores the contrary possibility: supposing Iqbal sub silentio overrules Swierkiewicz and applies plausible pleading to discrimination claims, what must a plaintiff plead to avoid dismissal for failure to state a claim?

The most obvious response is that plaintiff should plead a prima facie case of discrimination under the traditional McDonnell Douglas Corp. v. Green standard. Although Swierkiewicz held that this was not necessary (in part because there are other ways of proving discrimination), it did not suggest that such pleading would not be sufficient. There are, however, complications with this approach that should be explored. Further, there are at least three alternatives for attorneys who cannot, consistent with Rule 11, allege such a prima facie case. First, the plaintiff might survive a 12(b)(6) motion by pleading “direct evidence” of discrimination. While the term has a checkered history in discrimination jurisprudence, the pleading context suggests a new look at an old concept. Second, the article addresses the possibility of pleading the existence of a “comparator” whose more favorable treatment than plaintiff may make the claim of discrimination plausible.

Third, and perhaps most radically, the article argues that plaintiffs should be able to take the Supreme Court at its word in Iqbal that, in deciding a motion to dismiss for failure to state a claim, a district court must take as true all facts (as opposed to legal conclusions) alleged in the complaint. It proposes that plaintiffs plead the existence of social science research showing the pervasiveness of discrimination. Taken as true, this body of literature may well nudge a particular claim across the border drawn by the Supreme Court between a “possible” claim and a “plausible” one.

--A

http://lawprofessors.typepad.com/civpro/2010/10/sullivan-on-iqbal-and-employment-discrimination-claims.html

Recent Scholarship, Twombly/Iqbal | Permalink

Comments

I am a Pro Se litigant currently facing a 12(b)(6) motion to dismiss. In my complaint, somewhat expecting that my opposition was going to out-lawyer me, I have plead what I think is "Fair Notice", "Direct Evidence" and have plead on the lines of a prima facie case. So I pled a combination of these things and pointed that out in my sur replies. My defendants have largely attacked my complaint on lines of "legal conclusions" and conclusory statements, however I used my EEOC file to support my statements. In addition, I live in New York and the NYCHRL has broader protections and I am Pro Se.

The Twombly and Iqbal decisions don't really take in consideration that the discriminatory evidence mostly lies within the employer's control. So Fair Notice and some facts "taken as true" really should be enough to make it through. If I was a Black American Farmer Hand in the South, and claimed discrimination the payment records would be with the Farmer. I could only plea conclusory statements if I suspected or knew that White American Farm Hands were getting higher pay.

I understand that discovery can be expensive, but the Judge has control over scheduling and deadlines. This law puts a flood between the Indigent, and the cost concerned civil rights plaintiff. If anyone is interested, I can give you my docket number and you can read my case - I can be reached at rapmarketing@hotmail.com.

Posted by: Reggie | Oct 26, 2010 11:40:26 AM

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