by Tim Koch
A plaintiff’s ability to bring a claim of discrimination before federal courts has received a one-two punch from the Supreme Court over the past several years. The Court has significantly raised the bar of what a potential plaintiff must establish without prior benefit of discovery. As a result, “equal justice for all” may well have been set too far out of reach in an unacceptable number of cases. Federal Rule of Civil Procedure 8(a)(2) sets out the requirements for a complaint: a pleading must put forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” For fifty years, beginning with the seminal case, Conley v. Gibson, the Supreme Court interpreted this to mean that the only way in which a claim fails to meet its necessary burden is when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
That case involved racial discrimination in labor negotiations, and the respondents unsuccessfully argued that the case should have been dismissed on the grounds that the complaint failed to allege “specific facts to support its general allegations of discrimination.” The Court outlined a simple rubric: courts should construe all pleadings to further the interests of “substantial justice” and ensure that respondents have “fair notice” of the basis for the claim. Thus, when in the pursuit of substantial justice, a case should move forward to the discovery phase as long as respondents know what they would be expected to defend and it is possible that the plaintiff could prevail on the merits.
In 2007, the Supreme Court shifted its application of Rule 8(a)(2) in Bell Atlantic Corp. v. Twombly. In this case, a putative class action, Plaintiffs asserted that Bell Atlantic and other major telecommunications corporations had violated antitrust laws, and cited parallel economic activity in their complaint as evidence of a conspiracy to inhibit competition. Writing for the majority in dismissing the case, Justice Souter raised the bar for a complaint to reach discovery from possibility (that the plaintiff could prevail) to plausibility: “Asking for plausible grounds to infer [an antitrust conspiracy] . . . calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”
With respect to the Conley decision, the Court in Twombly held that the “no sets of facts” phrase—that is, that a complaint may move forward unless there is no set of facts by which the plaintiff could prevail—“is best forgotten as an incomplete, negative gloss on an accepted pleading standard .” Instead, a well-pleaded complaint is “to be supported by showing any set of facts consistent with the allegations in the complaint.” In the Court’s opinion, the identification of parallel economic conduct was not sufficiently consistent with an allegation of antitrust conspiracy.
Two years after Twombly, the Supreme Court again took up a case that hinged on the application of Rule 8(a)(2). In Ashcroft v. Iqbal—a complaint charging that government officials had illegally discriminated in rounding up and detaining persons post-9/11—the Court affirmed that “Twombly [had] retired the Conley no-set-of-facts test.” Here, the majority ruled that in order to state a viable claim of illegal discrimination, Mr. Iqbal would have to “plead sufficient factual matter” to show that the government’s policies were “not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.” In explicating its “plausibility standard” for surviving a Rule 8(a)(2) motion to dismiss, the Court asserted that a claim that fails to present more evidence than facts that are merely consistent with a defendant’s liability fails; it will “not unlock the doors of discovery.” Now, deciding whether a complaint is plausible is the prerogative of judges.
The recent decisions to set aside Conley raise alarms for any plaintiffs seeking to litigate charges of discrimination. First, the Supreme Court has signaled that it is the burden of the plaintiff, without benefit of discovery, to show that factual patterns of (discriminatory) practice cannot equally be explained away as originating from some non-discriminatory motive. Second, the reasonableness of these cases is to be vetted by judges, and not determined by triers of fact.
What might this look like? What facts, unearthed prior to discovery, must be plausibly presented in order to get a discrimination case before a jury? In Twombly, the plaintiffs would have needed an office memo of antitrust intentions, minutes of a meeting among telecommunications executives reflecting their determination to fix prices, or some equivalent “smoking gun” just to get to discovery. Similarly, in Iqbal, nothing short of a tangible record of specific, discriminatory intent on the part of Attorney General Ashcroft would have been sufficient to raise the complaint from possible to plausible under the Court’s stricter standards. Here again, this evidence would have had to be produced without benefit of and prior to discovery.
This is, not surprisingly, a windfall to employers who might face charges of discrimination. For example, unless they are incredibly inept and either make public, racist declarations or leave paper trails describing their discriminatory intentions, employers who violate Title VII are far more insulated from litigation than ever before. The chances that an impartial jury made up of a cross-section of Americans will ever evaluate these employers’ practices are hereinafter (legalese) drastically reduced. One local employment lawyer, celebrating Twombly and Iqbal as tremendous boons for his corporate clients, suggested checking Westlaw® for how many times Twombly and Iqbal have been cited—frequently by corporate attorneys. Twombly, in just three years, has already been referenced in well over 90,000 written decisions; Iqbal, in one year, in over 35,000. Chilling, indeed.
Fed. R. Civ. P. 8(a)(2).
 Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
 Id. at 47.
Id. at 48.
 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
 Id. at 550-51.
Id. at 556 (emphasis added).
 Id. at 563.
 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1944 (2009).
Id. at 1948-49 (emphasis added).
Id.. at 1948-50.
See Bell Atlantic Corp. v. Twombly: Citing References (Oct. 15, 2010) (Westlaw). Note that the citations are not all from discrete cases, that a minority of these cite in order to disagree or distinguish, but that the numbers of cases seeking authority from these two cases are still extraordinarily high.