Clark on Compound Discrimination Claims After Iqbal and Gross

Brian Clarke (Washington & Lee) has just posted on SSRN his new article, "Grossly Restricted Pleading: How Twombly/Iqbal, Gross and the Assumption of Truth Rule Could Kill Compound Employment Discrimination Claim," which will appear in the Utah Law Review. The abstract:

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required “but for” causation, meaning that only where “age was the reason” for the adverse employment action could a plaintiff prevail. The lower federal courts quickly began applying Gross to claims under other anti-discrimination statutes, notably the Americans with Disabilities Act and 42 U.S.C. § 1983, that, like the ADEA, prohibit discrimination “because” of a protected characteristic. Other anti-discrimination and anti-retaliation statutes – the Genetic Information Nondiscrimination Act, the Family Medical Leave Act, the Fair Labor Standards Act – also prohibit discrimination “because” of a protected characteristic and are subject to Gross’s requirement of but-for causation.

The combination of the Twombly/Iqbal requirement that a plaintiff plead facts sufficient to render each claim in her complaint facially plausible, Iqbal’s specific requirement that a plaintiff plead facts sufficient to make an inference of discriminatory intent facially plausible, the well established “assumption of truth” rule, and the but-for causation requirement articulated in Gross creates a significant problem in situations where an employment discrimination plaintiff pleads “compound employment discrimination claims.” Compound employment discrimination claims are claims in which the plaintiff alleges that her employer discriminated against her based on two or more protected categories protected by two or more separate employment discrimination statutes, such as age (protected by the ADEA) and race (protected by Title VII of the Civil Rights Act of 1964). In compound employment discrimination claims, the facts pled to satisfy Twombly/Iqbal, accepted as true, likely render any claim requiring but-for causation facially implausible.

This paper analyzes the complex interaction of Twombly/Iqbal, traditional bases for dismissal under Rule 12(b)(6), the “assumption of truth” rule, Rule 8(d), and Gross and the effect of their combination on compound employment discrimination claims. Additionally, in order to correct the iniquitous results of this combination, this paper sets forth a new proposal for amending the Federal Rules of Civil Procedure to ensure that courts construe pleadings in employment discrimination cases in accordance with the Congressional intent embodied in the ADEA and the other anti-discrimination statutes impacted by Gross.

Looks like an interesting take on the intersection of these already interesting cases.

-JH