Of the many barriers facing a plaintiff in litigating a case of discrimination under Title VII of the Civil Rights Act of 1964 is being able to properly draft a complaint when there are inferences that discrimination occurred, but the hard evidence has not yet been discovered. The United States Court of Appeals for the Second Circuit, on August 3, 2015, as reported by Reuters, eased the plaintiff’s burden to survive an initial motion to dismiss for failure to allege sufficient facts. This was in the case of Littlejohn v. City of New York, which reversed the dismissal of a discrimination claim by an employee that she was subjected to a hostile work environment and disparate treatment based on her race, and retaliated against because of complaints about such discrimination, in violation of Title VII.
The U.S. Supreme Court has established, through a number of different decisions, the minimal facts that a plaintiff must plead in a complaint in order to avoid a dismissal for failure to plead sufficient facts to set forth a “plausible” basis for ultimate recovery. The Littlejohn Court discussed the various cases and arrived at the conclusion that, in a case of discrimination and retaliation brought pursuant to Title VII, the plaintiff does not have to plead facts that will support an ultimate finding of discrimination. Rather the facts that must be pleaded initially are those facts which, as established by the decisions in McDonnell Douglas Corp. v. Green and other cases, will lead to a “temporary presumption” of discriminatory motivation. What that temporary presumption does is to then require the employer to produce evidence that the adverse action against the employee was not based on discrimination but on a valid non-discriminatory reason. That “temporary presumption” is achieved by the plaintiff establishing a prima facie case, consisting simply of a statement of facts that (1) that she is a member of a protected class; (2) that she was qualified for employment in the position; (3) that she suffered an adverse employment action; and, in addition, has (4) some minimal evidence suggesting an inference that the employer acted with discriminatory motivation.
In discussing the case of Ashcroft v. Iqbal (Iqbal), the Littlejohn Court held that the benefit of the “temporary presumption” of discriminatory motivation, applies in a Title VII case despite the stricter requirements of Iqbal, and plaintiff does need substantial evidence of discriminatory intent before the employer comes forward with its claimed reasons for its actions. The Court in reversing the dismissal of Littlejohn’s claims, held that the pleading of the four elements of McDonnell Douglas were sufficient to avoid a dismissal and to require the employer to produce evidence of its non-discriminatory intent.
The Littlejohn decision is a significant step in fairness to protect an employee from early-stage dismissal for lack of evidence demonstrating the employer’s discriminatory motivation, before the employer sets forth its reasons for the adverse action it took against the plaintiff.