• Congress Seeks To Overturn Supreme Court Decisions Favorable To Employers
  • March 11, 2010
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - King Of Prussia Office
  • In 2009, the United States Supreme Court issued two decisions that make pleading and proof requirements more stringent for plaintiffs in civil rights and employment discrimination claims with the cases of Ashcroft v. Iqbal, 129 S.Ct. 1937 and Gross v. FBL Financial Services, 129 S.Ct. 2343. Legislators now seek to overturn both decisions with the Open Access to Courts Act of 2009 and the Protecting Older Workers Against Discrimination Act.

    Ashcroft v. Iqbal and the Open Access to Courts Act of 2009

    Ashcroft v. Iqbal and its Impact

    In the Ashcroft case, the U.S. Supreme Court addressed whether conclusory allegations were sufficient to state a claim for unlawful discrimination. The Court found that conclusory allegations and mere recitals of the elements of a cause of action in a complaint would not suffice.

    Javaid Iqbal was arrested in New York in November 2001 after being charged with conspiracy to defraud the United States. Iqbal was released in 2003, after serving a prison term, and subsequently filed a civil complaint against the United States and government defendants, alleging violation of his First, Fourth, Fifth, Sixth, and Eight Amendment rights, violation of the Federal Tort Claims Act, and other statutory claims. Iqbal claimed that during his detention, he was physically assaulted by prison guards without provocation, denied medical care, subjected to unjustified strip searches, verbally berated, prevented from engaging in religious study, and denied access to legal counsel due to a condoned practice of discriminating against Arab immigrant detainees solely due to their race, religion, and/or national origin following the attacks of September 11, 2001. Iqbal argued that FBI Director Robert Mueller and Attorney General John Ashcroft personally condoned the decision to detain him and others and to subject them to harsh conditions because they were Arab immigrants.

    Following a Motion to Dismiss by the defendants, the District Court found that the facts alleged in Iqbal's complaint were sufficient. The Second Circuit Court of Appeals affirmed that decision, concluding that the allegations as plead were sufficiently plausible to survive a Rule 12(b)(6) motion to dismiss. The U.S. Supreme Court granted certiorari, in part to address "whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are sufficient to survive a motion to dismiss in an action brought under Bivens."

    In a 5 to 4 decision, the Supreme Court reversed the Second Circuit and held that Iqbal's complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination. The Court acknowledged that under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" and "detailed factual allegations" are not required, citing to Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the complaint must still contain sufficient factual allegations to state a claim to relief that is plausible on its face. In reviewing the facts in a complaint, the court must be able to draw the reasonable inference that the defendant is liable for the misconduct alleged.

    The Court held that Iqbal's pleadings did not comply with Rule 8 under the holding in Twombly. The Court found that several of his allegations were conclusory and not entitled to a presumption of truth, including allegations that the defendants agreed to subject Iqbal to harsh conditions of confinement pursuant to a policy based on discriminatory reasons alone and that Ashcroft was the policy's principal architect.

    The impact of this case on employment and other civil claims is that it makes it more difficult for plaintiffs to rest their complaints on mere speculation and conclusory allegations. This case makes the pleading standard in federal civil claims even more stringent with regard to factual support and plausibility of liability.

    The Proposed Legislation to Overturn Ashcroft v. Iqbal

    In November 2009, proposed legislation was introduced in the House of Representatives that would overturn Ashcroft. The Open Access to Courts Act of 2009 followed a proposed bill in the Senate with the same purpose, the Notice Pleading Restoration Act of 2009. The proposed legislation seeks to overturn Ashcroft v. Iqbal, and its predecessor Bell Atlantic v. Twombly, and to restore less stringent requirements as to factual specificity in a complaint. The House would add to Chapter 131 of Title 28, United States Code, in part:

    Sec. 2078. Limitation on dismissal of complaints

    (a) A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

    Gross v. FBL Financial and the Protecting Older Workers Against Discrimination Act

    Gross v. FBL and its Impact

    In Gross, the Supreme Court held that employees must prove by a preponderance of the evidence that age was the "but for" or deciding factor in the employer's adverse employment decision. Under Gross, an employer does not have to establish that it would have made the same decision regardless of age even if the employee produced some evidence that age bias played a role in the adverse employment decision. The mixed motive definition was first expressed in 1989, in the U.S. Supreme Court case of Price Waterhouse v. Hopkins. In this gender discrimination case, the Court ruled that where a person's protected class, such as sex, age or race, played some role in the adverse employment decision, an employer could avoid Title VII liability by showing that it would have made the same decision even absent the employee's protected class.

    In Gross, the plaintiff Jack Gross alleged that he was reassigned to a less favorable position due in part to his age. The Supreme Court held that unlike Title VII, the ADEA does not require a mixed motive analysis. The Court held that under the ADEA, the plaintiff must show that age was the deciding factor in the employment decision rather than simply one component in the decision-making process.

    The Proposed Legislation to Overturn Gross v. FBL

    In October 2009, four lawmakers introduced legislation in both houses of Congress, the Protecting Older Workers Against Discrimination Act, which would overturn the Gross decision. The Act would allow a plaintiff to succeed on an age discrimination claim by showing only that age discrimination was a one motivating factor behind the adverse employment decision. In addition, the legislation would clarify that this "motivating factor" analysis applies to all anti-discrimination laws.

    Conclusion

    Despite efforts by the United States Supreme Court to hold plaintiffs in employment and other civil cases to a more stringent standard of proof, lawmakers continue to seek to undermine the Court. As of now, the holdings in Ashcroft and Gross are the law of the land.

     

    Key Points:

    • In May 2009, the U.S. Supreme Court decided Ashcroft v. Iqbal, making pleading standards more stringent for plaintiffs in civil rights, employment and other civil claims, when faced with a Rule 12(b)(6) Motion to Dismiss the Complaint.
    • In June 2009, the U.S. Supreme Court decided Gross v. FBL Financial Services, Inc., holding that a plaintiff in an age discrimination claim under the Age Discrimination in Employment Act must prove the age was the "but-for" or deciding factor in the adverse employment decision, rather than just one of the motivating factors in the decision-making process.
    • In late 2009, lawmakers introduced legislation in Congress, which seeks to overturn both the Ashcroft and Gross decisions, with the Open Access to Courts Act of 2009 and the Protecting Older Workers Against Discrimination Act.