Monday, February 13, 2012

What's the correct pleading standard for employment discrimination cases?

There is some tension between two Supreme Court decisions governing how to plead a federal case. In Swierkiewicz v. Sorema N.A. (2002), the Court said that employment discrimination cases do not have to plead the elements of a prima facie case. In 2009, the Court said in Ashcroft v. Iqbal (2009) that the complaint must allege a claim that is "plausible on its face." This possible conflict surfaces in an age discrimination case rejected by the Court of Appeals.

The case is Hedges v. Town of Madison, a summary order decided on January 13. Must have been a slow day at the Court of Appeals, which handily dismisses Hedges' case because he does not allege enough facts to allege age discrimination. He only says in the complaint that management got rid of this older worker before his pension vested. In 1993, the Supreme Court said allegations like this are not by themselves enough to state a claim. What makes this case interesting is the Second Circuit's (Pooler, Livingston and Leval) observation that "The pleading standard for employment discrimination complaints is somewhat of an open question in our circuit."

The open question is occasioned by Swierkiewicz and Iqbal. Swierkiewicz made it easier for employment discrimination plaintiffs to survive a Rule 12 motion to dismiss. But, as the Court of Appeals notes, Swierkiewicz relies on Conley v. Gibson (1957) which said you can safely plead your case under "notice pleading" standards, a lenient test that the Supreme Court tossed aside in Iqbal. All very interesting for those who handle employment discrimination cases. What's the real standard for these cases? The Second Circuit does not resolve this conflict, finding instead that Hedges cannot plead a case under any standard.

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