How to plead discrimination under Title VII

A few years ago, the Second Circuit issued a ruling that had important consequences for pleading Title VII violations in federal court. The court seemed to make it more difficult to dismiss these cases for failure to state a claim, which in turn would make it easier for plaintiffs to proceed with discovery. This case demonstrates how it all works.

The case is Khanna v. MUFG Union Bank, a summary order issued on November 19. Note that this is a summary order that reverses the Rule 12(b)(6) dismissal. Normally, a Second Circuit ruling that reverses the district court is a big deal -- trial court judges in the federal system are not dummies, after all -- but I've noticed the Court of Appeals often reverses Rule 12 dismissals through short, summary orders that do not detail the facts or the reasoning. What the Court of Appeals is telling us is that some of these reversals are not that complicated. The message to the district courts is that these cases are not to be dismissed lightly. If you really want to get rid of the case, wait until the defendant moves for summary judgment.

In the world of Rule 12 dismissals, things got easier for plaintiffs in 2015, when the Court of Appeals issued Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which is a must-read for any Title VII lawyer. In that case, the court said that "“Under Iqbal and Twombly, . . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against [her] and (2) [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Iqbal and Twombly are the Supreme Court rulings from 2007 and 2009 that said the plaintiff must plead a plausible claim to avoid dismissal under Rule 12. While most plaintiffs' lawyers dislike Iqbal and Twombly (which made it easier to dismiss cases from the outset), the Vega standard is not burdensome, and it revives Khanna's case. The district court said plaintiff had no case for this reason: "“While it is true that many industries are dominated by white men, being out-numbered or the lone minority in an office setting is not enough, without more, to give rise to a gender or race-based discrimination claim.” But the Second Circuit (Sack, Hall and Bianco) sees it differently:

The District Court’s conclusion overlooks Khanna’s claims that she was treated less favorably than her white male coworkers. Khanna alleged that she was provided fewer resources, given fewer responsibilities, and held to a higher standard than her white male coworkers. Khanna also alleged that Nolen spoke to her in a patronizing manner and was pleasant and personable to her white male colleagues. For example, in a meeting about Khanna’s work performance, Nolen reminded Khanna in a condescending tone that she should say “please” and “thank you” at all times. Khanna further alleges that she was replaced by a white male the day after her termination.

In sum, the facts alleged in Khanna’s Second Amended Complaint show the sort of “mosaic” of intentional discrimination based on “bits and pieces” of evidence that we expect to see in a discrimination claim because “clever men may easily conceal their motivations.”

I have found that evidence like this is hard to prove: that the employer's office manner was more hostile to black or female employees than white or male employees. It's just tough to quantify this kind of evidence. But that kind of treatment does violate Title VII. Plaintiff will now have to prove it in discovery.