Ashcroft v. Iqbal and the Pleading Standard

Law professors teaching Civil Procedure this fall may have reason to revise their lecture notes covering the pleading standard in federal courts for the first time in a long time.  This pleading standard, as articulated in the Federal Rules of Civil Procedure (FRCP) Rule 8(a), has presented a very low hurdle for plaintiffs since the Supreme Court addressed the issue in Conley v. Gibson in 1957.  That is, perhaps, until Ashcroft v. Iqbal , a Supreme Court detainee case decided this spring that may end up significantly heightening the pleading standard for federal civil courts.

Depending on where you look, you can find members of the legal community making different predictions of where the courts will land on Iqbal.  Some are dismissing the significance of the case, and others are declaring it a major obstacle for plaintiffs and a coup for corporate defense.

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Eastern District of Wisconsin Bar Association Presents Awards to Michael O’Hear and Tom Shriner

 Warm congratulations to our colleague, Professor Michael M. O’Hear, who recently received the Judge Robert W. Warren Public Service Award, at a ceremony during the Eastern District of Wisconsin Bar Association’s annual meeting. It was a pleasure for a number of us to attend and see Michael receive well-deserved recognition for his service. As Nathan Fishbach, of Whyte Hirschboeck Dudek, noted in making the presentation, Michael is “a distinguished academician whose mission is to analyze and explain the dynamics of the sentencing process.” Indeed, Michael has become a national leader in the study and discussions concerning sentencing, and he has been active in this community as well. 

At the same ceremony, the Eastern District presented its Judge Myron L. Gordon Lifetime Achievement Award to Foley & Lardner’s Thomas L. Shriner, Jr., an Indiana University law graduate and well-known Milwaukee litigator (and adjunct professor of law here at Marquette). The citation accompanying the award, written by Bill Mulligan, L’60, and Dean Joseph D. Kearney, concluded with the observation that Tom is “respected and admired for his prodigious knowledge of the law, great wit, smile, and willingness to help others.”  Congratulations as well to Tom.

The full citations can be found here concerning Michael and here concerning Tom.

 

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Seeking a Practical Age Discrimination Standard

In Gross v. FBL Financial Services, Inc., being argued Tuesday, March 31, the Supreme Court will address how to analyze mixed-motive claims under the Age Discrimination in Employment Act (ADEA). Nothing less than meaningful access for employment discrimination plaintiffs to relief under Title VII of the Civil Rights Act of 1991 (CRA of 1991) is at stake.

Background

To understand the importance of the Gross case to employment discrimination law, it is necessary to understand a fundamental distinction that has arisen in so-called individual disparate treatment cases, where a worker claims to have suffered an adverse employment action based on a protected characteristic under an employment discrimination statute. Initially, most of these cases were handled under the McDonnell Douglas pretext framework, which requires an employee to establish that the employer’s putative legitimate, nondiscriminatory reasons for its employment actions are pretextual and the real reason for the action was unlawful discrimination.

In 1989, the Supreme Court developed another model for proving disparate treatment discrimination in Price Waterhouse v. Hopkins. There, a woman denied promotion to partner in an accounting firm was able to show both legitimate and illegitimate motives for the employment action. Although a plurality of the Court decided that the plaintiff could make out a case by showing the illegitimate reasons for not promoting her were the “motivating reason,” a significant concurrence by Justice O’Connor set up that the illegitimate reason had to be a substantial part of the employer’s motivation and direct evidence was required to show that motivation. Many courts thereafter followed Justice O’Connor’s formulation.

Two years later, Congress enacted the CRA of 1991, requiring only that the illegitimate reason had to be motivating. Unfortunately, Congress did not make clear its intentions about what framework should govern age discrimination claims under the ADEA.

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