How much “plausibility” has to be in a Title VII (American anti-discrimination law) claim?

This is going to be the final one on the project in White Plains, and for regular readers.

Of the pre-motion conference last Friday, the two “take aways” from IBM’s 11 objections were that I needed to tighten the personal jurisdiction pleadings as to IBM Japan, and, perhaps more significantly, spell out the “plausibility” in the root Title VII claim.

This bump in the road is there, as mentioned earlier, because of recent Supreme Court decisions in Bell Atlantic v. Twombley and Ashcroft v. Iqbal. The judge did not seem to indicate that the other nine objections were problematic, but those two (a 12(b)(6) by the parent company and 12(b)(2) by the affiliate) were. Sorry to sling the jargon here.

Yesterday, I blogged a bit about how the personal jurisdiction issue has to be responded to. I thought a bit more about this overnight, and considered the unfairness to any plaintiff if claims that arise out of the “common nucleus of operative fact” in an employment situation have to be cut off because a defendant may have national contacts but not (for whatever God-knows reason) “minimum contacts with the forum state”. So the American-controlled foreign subsidiary can use America to its hearts content—filing patents, soliciting business, etc. But when it comes time to answer a pleading, it would have a built-in defense.

It seems to me that federal policy would be to have all the claims in one court (like New Jersey’s “Entire Controversy Doctrine”), not spread out over state and federal, or federal and other countries. And Title VII can only be Title VII in an American system—we in the Japan-side expat community know how useless Article 3 of the Japanese Labor Standards Law is. Plus, you don’t get a jury.

It would be quite a thing if a federal judge were to say that, despite Congress’ express enactment of extra-territoriality in Title VII claims, the cases still can’t be heard if there are related claims out of the common nucleus of facts. It would, more or less, gut the statute.

But this is all an aside to “plausibility”.

It appears that the game in 2010 and 2011, now, has been that some courts are requiring more than notice pleading with a plausible claim, but instead what might be described as a “plausibility pleading standard” where the judge has to feel that the claim is good enough to win. To get there, you have to have the other side’s facts (discovery) BUT you don’t get those facts unless you can put up enough of ones in your own control, to keep the case in.

I feel that most victims of discrimination aren’t looking to be. They are just doing the job, or applying for it, etc. This idea that there are these eternal Title VII plaintiffs just itching for a fight is the same kind of “Tea Party” nonsense that has America quickly looking like a high-technology Banana Republic: the bad-seed straw man fellow citizen who just doesn’t exist. The plausibility standard forces the employee to keep a journal, in effect, of any potential discrimination that may be occurring in the workplace. Because no one could ever really know if, as victim, they will be put on the spot to produce facts that “plausibly” he or she is a victim.

It used to be very simply that a discrimination victim only had to plead an adverse employment event, and that it was the consequence of an act that Title VII prohibits. It didn’t have to be direct evidence; circumstantial evidence was OK.

Now, again, I tell you, I don’t practice for a living. This is blog, not legal advice. And I don’t know the future of this stream of Title VII case law. Who does? But, is it coming to a point where direct evidence will be the “plausible” evidence, and circumstantial evidence will be “plaintiff, you didn’t quite make out the claim” material for a 12(b)(6) dismissal?

Fortunately, my radar was already up when I was in Japan, that I knew to be on the look-out for bad situations. As I have mentioned to you, I go with Debito‘s sentiments probably 80% of the time–maybe a bit more–on this question of equal protection and fundamental fairness for non-Japanese in Japan. While I think the overwhelming number of Japanese citizens in cosmopolitan areas are very respectful of others–including outsiders–there are also strains of behavior that recur quite often in Japan that seem to come right out of the 19th century.

So when I started to get screwed by the contract-versus-regular employment scheme in March and April 2008, I knew what the deal was.

What I wonder though, is that outside of the extraterritorial context, back here in America, is the “plausibility standard” shutting out meritorious claims, because the various people are not in a situation where their radar would be up?