Tuesday, August 17, 2010

Sullivan on Pleading Discrimination Claims

Sullivan Charlie Sullivan (Seton Hall) has just posted on SSRN his new article Plausibly Pleading Employment Discrimination.  Here's an excerpted 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....  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.... 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.

Number 3 would kind of turn Iqbal on its head -- not a bad thing, in my book.  I'm hoping, though, that the lower federal courts decide that Swierkiewicz is still good law unless and until the Supreme Court expressly overrules it.



Employment Discrimination, Scholarship | Permalink

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Rick, regarding your post about the Sullivan article on Iqbal, might there not be a fourth way of dealing with Iqbal - namely, pleading the EEOC's determination of reasonable cause? Surely, the agency's statutory finding of reasonable cause to believe that the respondent discriminated would satisfy the plausibility requirement. Of course, the EEOC does not often make such a finding, so being a little more bold, might the absence of a no-cause finding also satisfy the plausibility requirement? The determination form used by the EEOC typically says, in the absence of cause or no-cause finding, that it cannot make a determination from the evidence. Might that language plus the fact that the Commission could have, but did not, find "no cause" provide at least a nudge toward plausibility? In any event, in the cases where there is a cause finding, that should be determinative of what is a plausible claim for purposes of Rule 12(b)(6).

Posted by: Jonathan R. Harkavy | Aug 17, 2010 9:59:58 AM

"It proposes that plaintiffs plead the existence of social science research showing the pervasiveness of discrimination."

Could someone please write a model paragraph or paragraphs to this effect that I can cut-and-paste into my discrimination complaints? Would be much appreciated. I've got a gender discrimination (female construction worker) case I'm about to file, and would love to include something like this.

Posted by: Simon | Aug 20, 2010 11:14:43 AM

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