The trouble with twombly: A proposed pleading standard for employment discrimination cases

Abstract

Amorphous. This is how the Supreme Court's recent pleading paradigm has been appropriately described. In Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007), the Supreme Court abandoned the well-known pleading standard it had adopted fifty years earlier in Conley v. Gibson, 355 U.S. 41 (1957), that a complaint should only be dismissed 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 division in the judiciary over this question. If applied rigidly, Twombly threatens to raise the bar for civil rights litigants seeking to plead their claims.Through a numerical analysis, this Article attempts to determine how strictly the courts have been applying Twombly to employment discrimination plaintiffs. This Article examines the dismissal rates of employment discrimination claims in the year before and the year following the Twombly decision. The results reveal an increasing trend in the rate at which the lower courts dismiss employment cases. Indeed, motions to dismiss decided between six and twelve months after Twombly were at least partially granted over 80% of the time-a substantial increase over decisions issued prior to Twombly. Through an 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.

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