Despite the overwhelming public awareness of sexual harassment in the workplace, many federal courts still apply an unnecessarily stringent evidentiary burden to these claims. Following the Supreme Court’s lead in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the lower courts have imposed a heightened plausibility pleading standard on harassment cases, preventing these claims from proceeding at the nascent stages of the case.
Workplace harassment is an undeniable fact of our society, and the courts should accept this fact when it is pled in a discrimination complaint, rather than prematurely eviscerating these claims on dismissal. This Article argues that, given the current public awareness of harassment, along with the concomitant social science research and data supporting its prevalence in the workplace, any individual claim of harassment is inherently plausible. Thus, Twombly and Iqbal are largely irrelevant for harassment cases, and these claims are better vetted after discovery.
This Article reviews the existing research on harassment and proposes a new framework for pleading hostile work environment claims. Navigating the procedural rules and Supreme Court precedent, this Article explains how the proposed model can be used by the courts to more fully analyze sexual harassment cases.
Joseph A. Seiner, Plausible Harassment, 54 U.C. Davis L. Rev. 1295 (2021).