I’ve wrapped up the first amended complaint, and I trust that I have hit the mark on yesterday’s topic: plausibly pleading employment discrimination.
As regular readers know, I have been locked in a back-and-forth for over 3 years with a Japanese subsidiary of a U.S. multinational company. Two years were spent with EEOC, and as their efforts were inconclusive, I am now in U.S. District Court.
Put simply, I had sei sha’in status the same as all the Japanese (and non-American, non-Japanese) workers in the acquired unit I worked for. But I was told, sorry, you just get a term-limited contract–and all the other people got sei sha’in status in the Japanese subsidiary of the big multinational. An American who was hired shortly after that decision was pushed out because of a time-change in the division, where, as a then-single parent, he had responsibility to get his son to school before work. (The subsidiary had a child-care policy, but they did not share it with him.)
I have been reading up on contemporary employment discrimination pleading, and especially Seton Hall Law Professor Charles Sullivan’s paper, Plausibly Pleading Employment Discrimination.
From what I gather, it isn’t simply a matter of pleading that you were discriminated against and what the adverse employment action was. There has to be some “more”. However, there isn’t enough case law out there yet (since the 2009 Iqbal decision) to say what the “more” is. So it is like a hit-or-miss almost.
Do you have to show other instances with the same employer where there had been reported discrimination that would run afoul of Title VII? Fortunately, with my defendant, there was—in 1989. Does your account of what happened have to verbally jump some bar that a given judge has in mind to make it a “plausible” case of discrimination, versus, say, a “life is unfair” standard? If the defendant gets to say “oops” but you had a sei sha’in right in a job, do you still get that right honored?
Do you have to present enough evidence so that a judge would decide that a jury could only find a case of discrimination (judgment as a matter of law)?
Our “conservative” American federal Supreme Court has been screwing around with so many well-settled principles of law in recent times. I don’t think that those Supremes realize that each refinement of sorts is not helping to “solve” the crisis of backlogged dockets. (More judges would be one development to fix that.) All these awkward re-writings of settled rules do is make it more difficult for parties involved to know what exactly the law is in certain instances.
I am already missing John Paul Stevens. He really saw that that was the approach judges needed to take.
[Update: Don’t just take my blogging word for it. The conclusion to the law review article (August 2010) that I linked to is clear enough:
Pleading generally, and employment discrimination pleading in
particular, is in disarray in the wake of Twombly/Iqbal. The continued
viability of Swierkiewicz and the application of Twombly/
Iqbal’s two requirements of nonconclusoriness and plausibility are
certain to continue to engage the courts. Plaintiffs’ attorneys can be
expected to try to avoid the more serious obstacles these cases raise
by pleading more than Swierkiewicz found necessary, and, in fact,
attorneys often plead more than the barebones allegations that
notice pleading, as traditionally understood, was thought to require.
This Article tries to guide that effort, suggesting ways in which,
even if Swierkiewicz were to be held a dead letter and a plea of
“discrimination” were found, by itself, to be too conclusory under
Twombly/Iqbal, a complaint could still survive a Rule 12(b)(6)
motion. The Article suggests several possibilities: pleading a prima
facie case under McDonnell Douglas; pleading “direct evidence” of
discrimination; pleading the existence of a comparator; and, most
importantly, pleading social science studies documenting the
pervasiveness of discrimination in American society.