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, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), 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.

Joseph Seiner (University of South Carolina School of Law) argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims.

His paper summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and synthesizes the governmental data and litigation in this field, offering a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area.

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