Insights: Publications Clearly Unfair: McCleary-Evans and the Problems Associated with Pleading an Employment Discrimination Case
11 Charleston L. Rev. 270
While nearly eight years have passed since the Supreme Court’s landmark decision in Ashcroft v. Iqbal, the proper pleading standard for employment discrimination claims remains in a state of flux. That is because seven years prior to its decision in Swierkiewicz v. Sorema, N.A., where it held that in the context of employment discrimination, pleadings need not contain specific facts establishing a prima facie case of discrimination under the burden-shifting framework articulated in McDonnell Douglas v. Green. While the “plausibility” standard first articulated in Bell Atlantic Corp. v. Twombly and later cemented by Iqbal undoubtedly governs transsubstantively, both courts and commentators alike have been puzzled as to what the standard means for employment discrimination complainants and their civil complaints.
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