Henry David Thoreau wrote in Walden that “[ilt is never too late to give up our prejudices.” The Supreme Court’s decision late last term in Ashcroft v. Iqbal may have made it easier for those prejudices to exist unchallenged. The decision extends the controversial holding of Bell Atlantic Corp. v. Twombly–that a plaintiffs allegations must state a plausible claim to avoid dismissal–to all civil cases, including “antitrust and discrimination suits alike.” The Iqbal decision thus resolves the debate as to whether the Twombly plausibility standard is limited to the antitrust context where it arose, making clear that the standard applies to all civil matters, including employment-discrimination cases. Indeed, recent research suggests that the plausibility test is already being used by some lower courts to dismiss workplace claims.
The plausibility standard announced in Twombly and confirmed by Iqbal replaces the more relaxed test from Conley v. Gibson, that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” This “no set of facts” language from Conley governed federal pleading for fifty years until the recent Supreme Court cases abrogated the decision and required plaintiffs to plead sufficient facts to state a plausible claim. While Twombly and Iqbal have significantly changed the pleading rules for all civil cases, these recent decisions provide little guidance regarding what must be alleged to sufficiently state a claim of employment discrimination brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VI”).
Nevertheless, Iqbal does help clarify Twombly on the question of intent and explains that discriminatory intent cannot be alleged “generally” but must instead be alleged in the proper factual context. Similarly, Iqbal warns against making conclusory statements when attempting to allege that the defendant’s discriminatory intent is plausible. Iqbal provides that plausibility “is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” This Article attempts to pinpoint exactly where plausibility falls in that gray area between possible and probable when alleging discriminatory intent in an employment case pursuant to Title VII.
