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In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both the courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.

There are two types of employment discrimination claims – intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true where a plaintiff has not had access to discovery.

One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This paper closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. This paper offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court’s recent decisions is preferable.

Navigating Twombly, Iqbal and other Supreme Court decisions, this paper explains how the plausibility standard should be applied to unintentional discrimination cases. This Article provides a blueprint for the courts and litigants to follow when considering a disparate impact claim, and addresses the implications of adopting the proposed approach. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts – for the first time – to make sense of these decisions in one of the most complex areas of employment discrimination law.


Originally published in Hastings Law Journal and shared here with their permission.

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