By Sharon L. Gold
In a 5-4 decision decided on May 18, 2009, the Supreme Court made it tougher for employees to survive motions to dismiss in federal court. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Court extended its Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), decision to all civil cases and specifically to discrimination cases. In Twombly, an anti-trust case, the Court increased the pleading standard for complaints, holding that whereas before, a complaint would not be dismissed “unless it appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief[,]” after Twombly, a complaint must set forth the necessary legal elements and be supported by a set of facts making the claim plausible.
In Ashcroft v. Iqbal, a civil rights action brought by a person arrested in the wake of the September 11, 2001 terrorist investigations, the Court held that Twombly was not limited to anti-trust cases and, indeed, was applicable in all civil cases. Igbal, 129 S.Ct. at 1953. The Court explained that Twombly held that a complaint must contain sufficient factual allegations which, if taken as true, constitute a facially plausible claim. Facial plausibility involves alleging “content that allows the court to draw a reasonable inference that the defendant is liable for the conduct alleged.” Id. at 1949. When determining whether to dismiss a complaint for failure to state a claim, factual allegations are taken as true, but legal conclusions are not. Further, the complaint must set forth facts making the claim plausible, which means there is more than a mere possibility that the plaintiff will prevail. Id. at 1949-52. Merely alleging facts that are consistent with discrimination is not enough.
The Court rejected the argument that while the federal rules do not require a heightened pleading standard for pleading discriminatory intent, a discrimination complaint still must show facts sufficient to show a discrimination claim is plausible. Id. at 1954. While Iqbal involved a civil rights complaint alleging discrimination by the government on the basis of religion, it is clear that Iqbal applies to civil discrimination cases as well since the Court expressly held that Twombly applied to all civil actions.
For employees claiming discrimination against employers in federal court, this means a tougher standard for pleading. They must now not only allege the legal elements of discrimination, but must also allege facts that would convince a court that there is more than a mere possibility that discrimination occurred. A complaint still may not be dismissed because a court does not believe a plaintiff will find evidence to support his factual allegations since factual allegations are still taken as true at the motion to dismiss stage. But, if the facts alleged do not show that liability is plausible, then the complaint should be dismissed.