May 29, 2012
Malveaux on Sullivan on Iqbal and Employment Discrimination
Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:
In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons. As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal? Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.
But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime? Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read. It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena. Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.