Wednesday, September 23, 2009

Seiner on After Iqbal


Joe Seiner (South Carolina) continues his impressive series on civil procedure/employment discrimination articles with his forthcoming piece in the Wake Forest Law Review entitled: "After Iqbal."

The abstract:

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court extended the controversial pleading standard that it announced in Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007), to all civil cases. Iqbal thus confirms that all civil plaintiffs must plead enough facts to state a plausible claim to relief. In addition, the Court’s decision goes even further by defining the contours of pleading discriminatory intent. Iqbal makes clear that an allegation of discriminatory intent cannot be general or conclusory, and must be supported by the proper factual context. While Iqbal and Twombly dramatically rewrite the law on federal pleading, the decisions provide little guidance for employment discrimination litigants, who must routinely establish an employer’s discriminatory intent in a typical Title VII case. This Article attempts to provide that guidance – after Iqbal.

This Article undertakes multifaceted research which uncovers the success rate of employment discrimination plaintiffs at trial and when facing summary judgment, and outlines various other studies suggesting that discrimination continues to permeate through our society. Given the pervasiveness of the discrimination highlighted in these studies, a reasonable inference can be drawn that a claim of employment discrimination – with the proper factual support – is far more plausible on its face than the more doubtful allegations set forth in Twombly and Iqbal. Based on the research set forth in this paper, this Article proposes a unified analytical framework for pleading discriminatory intent in Title VII cases which navigates the Iqbal and Twombly decisions. The proposed pleading framework should serve as a blueprint for Title VII litigants, helping the courts and the parties to better evaluate allegations of discrimination. This paper further explains why Swierkiewicz v. Sorema, 534 U.S. 506 (2002), is still good law as applied to Title VII cases.

Joe has become the real go-to-person on these procedural question involving Title VII issues. I look forward to hear him presenting it live at the Colloquium in a couple of days.


Employment Discrimination, Scholarship | Permalink

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Iqbal is already being used, successfully and sometimes not successfully in employment cases. The decision is most inappropriate for discrimination causes of action.

Posted by: Tom Crane | Sep 28, 2009 12:03:34 PM

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