How to plead a racial discrimination case

I always think racial discrimination cases are the hardest of all the discrimination cases to win. We all know racism still exists, but you are asking the court or jury to brand the defendant with a scarlet letter in finding that it practiced the most insidious discrimination of them all.

The case is Green v. District Council 1707, a summary order decided on April 17. This case was dismissed under Rule 12 for failure to state a claim. For non-lawyers, that means the case did not get any further than the lawyer filing the lawsuit. The judge reviews the allegations and decides if plaintiff has alleged enough facts to support a plausible claim.

The Court of Appeals (Jacobs, Lohier and Chen [D.J.]), reinstates the racial discrimination case. Here is the reasoning:

The defendants argue that the allegations in Green’s amended complaint fail to give rise to an inference of race discrimination. We disagree with respect to Green’s claims based on his termination and the denial of severance. Green has stated a claim of race discrimination under § 1981 because he plausibly alleged, among other things, that his supervisor consistently treated African American and Latino employees better than similarly situated Caucasian employees and that he was replaced by an African American.

In the alternative, the defendants argue that the District Court was right to dismiss the amended complaint because it pointed to legitimate, nondiscriminatory reasons for Green’s termination. But “[w]hether there existed non-pretextual, non-discriminatory explanations for the defendants’ employment decisions . . . is not properly decided on a motion to dismiss for failure to state a claim.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230-31 (2d Cir. 2014). We therefore vacate the judgment of the District Court insofar as it dismissed Green’s claims for race discrimination under § 1981 with respect to Green’s claims based on his termination and the denial of severance.

Take a close look at the reasoning. You cannot win an employment discrimination case without showing the employer's reason for your termination (or job denial) was a pretext for discrimination, i.e., the employer says you were fired for lateness, but in fact non-white employees were coming into work late all the time and were not fired. But in drafting the complaint, you do not have allege that the employer's articulated reason was pretextual. Of course, most lawyers will continue to do so, and for good reason. Under the Iqbal plausibility standards governing complaint drafting these days, the more detail, the better. You want the trial court to find the allegations of discrimination are plausible. What better way to show plausibility than to allege with detailed facts that the employer has offered a phony reason for the plaintiff's discharge?