THE DISCRIMINATION PRESUMPTION.

• Author: Seiner, Joseph A.

Unless the employer is a latter-day George Washington, employment discrimination is as difficult to prove as who chopped down the cherry tree. --Judge Irving L. Goldberg, U.S. Court of Appeals for the Fifth Circuit (1) INTRODUCTION 1116 I. BRIEF HISTORY OF THE PLAUSIBILITY REQUIREMENT 1121 II. APPLYING PLAUSIBILITY TO TITLE VII--THE PROBLEM 1124 OF INTENT III. SOCIAL SCIENCE AND DISCRIMINATION 1128 A. Race and Sex Discrimination 1129 B. National Origin and Religious Discrimination 1139 IV. ATTACHMENT TO THE PLEADINGS 1146 V. A NEW FRAMEWORK 1149 A. Alleging the Fact of Employment Discrimination 1150 B. Specifying the Adverse Action at Issue 1150 C. Attachments to the Complaint 1151 D. Defendant's Opportunity to Respond 1153 VI. IMPLICATIONS OF PROPOSED APPROACH 1153 CONCLUSION 1159 INTRODUCTION

Recent news events have seen many overt acts of high-profile discrimination. Racial tensions and violence ensued when a Confederate monument was removed in Charlottesville, Virginia. (2) Jewish community centers and cemeteries have recently encountered bomb threats and vandalism resulting in FBI investigations. (3) And in Kansas City, a man shouted a number of racial slurs before shooting two Indian men, killing one of them. (4) Even celebrities have recently faced overt racism, as vandals spray-painted an ugly racial epithet at the home of LeBron James, (5) one of the best known athletes in the world.

While such blatant discrimination continues to pervade our society, many believe that employment discrimination is simply a vestige of the past. (6) Playing off of this belief, many federal courts have made it more difficult to bring discrimination claims, particularly those arising in the workplace. (7) Over a decade ago, in Bell Atlantic Corp. v. Twombly, (8) the Supreme Court dramatically changed the pleading standards under the Federal Rules of Civil Procedure, making it far more difficult for victims of employment discrimination to bring workplace claims. Prior to the Twombly decision, the Court had expressly endorsed a notice pleading system where a civil complaint would be allowed to proceed if there were any "set of facts" that would support the allegations. (9) In Twombly, the Court abrogated this earlier standard and put in its place a heightened pleading requirement that plaintiffs must allege sufficient facts to support a "plausible" claim. (10) Two years later, in Ashcroft v. Iqbal, (11) the Court would further clarify that this plausibility requirement applies to all civil claims brought under the federal rules. The plausibility standard has been widely critiqued in the academic literature. (12) The standard has largely replaced the notice pleading system endorsed years ago under the Federal Rules of Civil Procedure. By requiring that numerous facts be alleged, the plausibility requirement has been criticized in scholarship as substantially heightening the pleading requirements for federal complaints. (13)

There are many cases where Twombly and Iqbal have had minimal, if any, impact. For example, in a run-of-the-mill negligence claim the basic facts are quickly ascertainable and easily alleged in the complaint. If an individual were negligently injured in a hit-and-run accident, the core facts of the claim could be quickly uncovered by a relatively straightforward investigation and inquiry into the case. (14) The same cannot be said, however, for workplace discrimination cases. Where an individual is improperly fired, demoted, or disciplined on the basis of race, color, sex, national origin, or religion, in violation of Tide VII of the Civil Rights Act of 1964 ("Tide VII"), (15) the core facts of the claim will often be in the possession of the employer. (16) Memoranda, emails, personnel files, and other documents that would support the claim are frequently maintained by the company that employs the worker. Without this documentation, it is often difficult--if not impossible--to uncover the critical facts in the case that would support an allegation of discrimination. Indeed, as these claims require a showing of discriminatory intent, alleging this type of unlawful motivation can be a daunting task, particularly when discovery has not even begun in the case. (17)

Many courts have applied an unnecessarily rigid interpretation of the plausibility requirement in workplace cases, (18) making it far more difficult for victims of discrimination to even proceed past the initial stages of the claim. (19) The plausibility standard has unleashed a powerful weapon for defendants, and many viable workplace claims are now failing to even find their way out of the starting gates.

This Article argues that, when properly interpreted, the plausibility standard should be irrelevant for most employment discrimination cases. The standard, which arose well outside the workplace context, was never meant to have been so negatively applied to employment discrimination claims. Indeed, on their face most claims of race, color, sex, national origin, and religious discrimination are at least "plausible." As this Article will show, the overwhelming weight of social science literature and other research studies reveal a widespread prevalence of discrimination in our society. (20) This discrimination occurs against all protected classes both in and outside of the workplace. While many of the existing studies suggest that the discriminatory intent is implicit rather than overt, the discrimination is nonetheless quite real. (21) An allegation of workplace discrimination, then, coupled with this social science research, should inherently create a plausible claim.

Beyond the social science research and other evidence of discriminatory attitudes in our society, it is difficult to ignore the more anecdotal--yet alarming--evidence of discrimination. Numerous instances of systemic discrimination against all protected classes continue to make headlines. There are countless examples of stunningly large judgments against major corporations in workplace discrimination cases. (22) And there are an equally substantial number of large settlements of Title VII claims. (23) Indeed, the U.S. Equal Employment Opportunity Commission ("EEOC"), the governmental agency that enforces Title VII in private sector cases, finds cause to believe that discrimination occurs in the workplace thousands of times each year. (24)

Given this widespread successful litigation and considering the scientific research and governmental data in this area, there can be little doubt that any specific claim of discrimination is in itself at least plausible. (25) Iqbal and Twombly are thus largely irrelevant to Title VII litigation as a practical matter. Prior to these decisions, the vast majority of claims proceeded past the dismissal stage of the litigation and were allowed to advance to discovery. (26) This same result should still occur even when the plausibility standard is fairly considered.

A little more is needed today than was ten years ago, however, by plaintiffs bringing these claims. Indeed, a victim of employment discrimination should now attach the relevant evidence establishing the existence of discriminatory attitudes and motivations in our society as part of the pleadings. (27) Social science research, the results of similar litigation, and current EEOC data should all be attached to the complaint to further bolster allegations of discriminatory conduct. Such additional documentation will provide plausibility to most claims of workplace misconduct. This information helps support the fact of the pervasive nature of employment discrimination. With the proper support, plaintiffs should be permitted to plead this fact in the complaint, and discrimination should be presumed in most cases.

Similarly, defendants should be given the opportunity to rebut this evidence and demonstrate why the facts present the more unusual case where dismissal is appropriate. It may be that there is a continuing pattern of frivolous litigation brought by the plaintiff in the case that would make discovery inappropriate in the matter. Or it may be that there is no proper jurisdiction in the case, or that the administrative requirements have not adequately been satisfied. There are thus numerous legal arguments that can be made to support the dismissal of a Title VII case. An argument that an employer's discriminatory motivations are implausible, however, should be difficult to establish given the overwhelming weight of the evidence in the field.

This Article takes no position on the likelihood that a particular claim will ultimately succeed in the courts on its merits. Rather, it argues that too many claims are now being thrown out too early, before the claimant has a fair opportunity to uncover critical information, which is often in the possession of the employer. A typical employment discrimination case should not be rejected simply because the plaintiff has not been given access to relevant documentation. At the end of the day, then, this Article argues that given the undeniable evidence of continued workplace discrimination in our country, the plausibility standard does little to change the viability of a Title VII case at its onset. When examined in this light, we are left with the simple conclusion that most Title VII cases should be permitted to proceed past dismissal, just as they were before Twombly and Iqbal. These Supreme Court cases on plausibility are largely irrelevant when applied to allegations of employment discrimination. Workplace discrimination is a fact, and most Title VII suits are plausible on their face.

This Article proceeds in several parts. In Part I, this Article examines the Twombly and Iqbal cases, giving particular consideration to their impact on employment discrimination claims. In Part II, this Article examines how the federal courts have rigidly applied the plausibility standard articulated in these cases to Title VII claims. In Part III, this...