Dismissing Justice: Examining the Consequences of Heightened Pleading Standards for Employment Discrimination Cases

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Abstract

The goal of this paper is to further examine the claim made by legal commentators that two recent Supreme Court decisions heightened the pleading standards for plaintiffs’ employment discrimination complaints, thereby increasing the rates of dismissals of these complaints. Taking into account studies indicating that racial discrimination persists in the labor market and plaintiffs who experience double or multiple discrimination may be especially disadvantaged in civil rights litigation, this paper focuses on outcomes for black women, a group that falls into this category. Comparing grants of motions to dismiss race-based employment discrimination cases decided before 2007-2009 to cases decided after this time span indicate that rates of dismissals did in fact increase after the two decisions. This finding suggests that the changed pleading standard, while neutral on its face, may not be neutral in its effect, and may have erected a barrier for those seeking justice.

Author

• Marie-Dumesle Mercier, New York University