More than a year and a half after the U.S. Supreme Court decided Ashcroft v. Iqbal,1 which extended Bell Atlantic v. Twombly‘s2 plausibility pleading standard to all civil cases, it appears that the many dire warnings voiced early on about Iqbal’s presumably lethal impact on employment law cases—particularly employment discrimination cases—may have been exaggerated. As discussed a number of times before in these pages, Twombly and Iqbal’s pleading standard compels greater attention to conclusory factual pleading, treats “state of mind” allegations in a manner inconsistent with prior precedent and encourages district court judges to apply their “experience and common sense” to decide whether a plaintiff’s legal claims and allegations are sufficiently plausible to survive motions to dismiss.
Employment law is no exception to the conclusion reached by many commentators that Iqbal has caused “confusion and disarray among judges and lawyers.”3 Once a district court considering a motion to dismiss has winnowed out all “conclusory allegations,” i.e., those that are no more than legal conclusions or “threadbare recitals of the elements of a cause of action,”4 it must assess the “plausibility” of the connection between the facts alleged and the relief claimed. Plausibility, as noted above, is to be determined by a judge’s instincts and experience, and in the U.S. Court of Appeals for the Second Circuit as elsewhere, the results of plausibility determinations have varied widely.
