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Monday, May 28, 2012

JOTWELL: Malveaux on Sullivan on pleading employment discrimination

The newest piece in the CourtsLaw sectionof JOTWELL comes from Suzette Malveaux (Catholic), reviewing Charles Sullivan's Plausiblty Pleading Employment Discrimination (published in William & Mary Law Review in 2011), which considers whether Twiqbal overruled Swierkiewicz v. Sorema and, if so, how plaintiffs can plead intentional employment discrimination.

Posted by Howard Wasserman on May 28, 2012 at 10:15 PM in Article Spotlight, Howard Wasserman | Permalink


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For those interested in this issue, I offer my own views in "Why Twombly is Good Law (But Poorly Drafted) and Iqbal Will Be Overturned," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734791

I do not believe Iqbal or Twombly overruled Swierkiewicz. The Twombly opinion cites Swierkiewicz favorably; the Iqbal opinion does not cite it at all. Thus, I don't think one can credibly say that Swierkiewicz was "overruled" by either of these cases.

That said, the approach in Swierkiewicz and Iqbal are inconsistent and, in my mind, cannot be reconciled. The fundamental problem is that the Iqbal Court misunderstood what happened in Twombly. In my view, once this confusion regarding the extent of the Twombly rule is figured out, Swierkiewicz will be left standing while the Iqbal decision will be overruled.

Posted by: Luke Meier | May 30, 2012 11:00:53 AM

I have to say, I'm baffled by the question, although I understand lots of people have asked it. Obviously Swierkiewicz is good law for its straightforward holding: courts can't amend Rule 9 to impose a heightened pleading standard for cases other than those of the kind Rule 9 contemplates. If you're not alleging fraud or mistake, then Rule 8 applies. What does Rule 8(a)(2) mean? Swierkiewicz isn't directed to that question, although it happens to apply Conley. The meaning of Rule 8(a)(2) is what Tw/Iqbal is all about, and you apply those. Can you demand *more* than what Tw/Iqbal would require in a particular category of cases, e.g., discrimination cases? No, see Swierkiewicz.

Posted by: anon | May 28, 2012 11:01:42 PM

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