The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases

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Amorphous. This is how the Supreme Court's recent pleading paradigm has been appropriately described. In Bell Atlantic Corp. v. Twombly, the Supreme Court abandoned the well-known pleading standard it had adopted fifty years earlier in Conley v. Gibson that a complaint should be dismissed only where there is no set of facts that could entitle the plaintiff to relief. In its place, the Court adopted a new rule that the pleadings must set forth sufficient facts to state a plausible claim. Though Twombly arose in the context of an antitrust case, its holding has already been extended by the lower courts to other areas of the law. The extent to which Twombly creates a new pleading standard for employment discrimination plaintiffs is unclear, and there is already disagreement among the judiciary over this question. If applied rigidly, Twombly threatens to raise the bar for civil rights litigants seeking to plead their claims.
This Article attempts to determine how strictly the courts have been applying Twombly to employment discrimination plaintiffs by examining the dismissal rates of employment discrimination cases in the year before and the year following Twombly. The results revealed a higher percentage of decisions that granted a motion to dismiss in the employment context when the courts cited the new Supreme Court decision. Through individual examination of these cases, this Article argues that the courts should be more cautious when using the plausibility standard to dismiss discrimination claims early in the proceedings.
To help resolve the current confusion in this area of the law, this Article proposes a new pleading framework for all employment discrimination cases, which complies with the recent plausibility standard set forth by the Supreme Court. The unified model proposed by this Article would bring more certainty to the pleading process and assist the courts and litigants in assessing the sufficiency of employment claims. This Article concludes by explaining how the proposed pleading framework comports with the legal scholarship following the Twombly decision.