The Discrimination Presumption

Joseph A. Seiner*

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs.

This Article argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies that demonstrate the fact of employment discrimination, and this Article also synthesizes the governmental data and litigation in this field.

This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship.

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© 2019 Joseph A. Seiner. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law and Oliver Ellsworth Professor of Federal Practice, University of South Carolina School of Law. Special thanks to the Honorable Mark W. Bennett, Derek Black, and Ned Snow for their helpful comments. The author would also like to thank the participants of the Colloquium on Scholarship in Employment and Labor Law for their helpful comments on this topic. This Article benefited greatly from the extraordinary research and drafting contributions of Axton Crolley, Elliot Condon, Erin Waldron, Grant Wills, and Kelsey Poorman. The editorial members of the Notre Dame Law Review also provided enormously helpful assistance with the final version of this Article. Any errors remain completely my own.