Grossly Restricted Pleading: Twombly/Iqbal, Gross and Cannibalistic Facts In Compound Employment Discrimination Claims

41 Pages Posted: 30 Aug 2010 Last revised: 8 Apr 2011

See all articles by Brian S. Clarke

Brian S. Clarke

Unaffiliated; Washington & Lee University School of Law; Charlotte School of Law; Western Carolina University - College of Business

Date Written: April 6, 2011


Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required “but for” causation, meaning that only where “age was the reason” for the adverse employment action could a plaintiff prevail. The lower federal courts quickly began applying Gross to claims under other anti-discrimination statutes, notably the Americans with Disabilities Act and 42 U.S.C. § 1983, that, like the ADEA, prohibit discrimination “because” of a protected characteristic. Other anti-discrimination and anti-retaliation statutes – the Genetic Information Nondiscrimination Act, the Family Medical Leave Act, the Fair Labor Standards Act – also prohibit discrimination “because” of a protected characteristic and are subject to Gross’s requirement of but-for causation.

The combination of the Twombly/Iqbal requirement that a plaintiff plead facts sufficient to render each claim in her complaint facially plausible, Iqbal’s specific requirement that a plaintiff plead facts sufficient to make an inference of discriminatory intent facially plausible, the well established “assumption of truth” rule, and the but-for causation requirement articulated in Gross creates a significant problem in situations where an employment discrimination plaintiff pleads “compound employment discrimination claims.” Compound employment discrimination claims are claims in which the plaintiff alleges that her employer discriminated against her based on two or more protected categories protected by two or more separate employment discrimination statutes, such as age (protected by the ADEA) and race (protected by Title VII of the Civil Rights Act of 1964). In compound employment discrimination claims, the facts pled to satisfy Twombly/Iqbal, accepted as true, likely render any claim requiring but-for causation facially implausible.

This paper analyzes the complex interaction of Twombly/Iqbal, traditional bases for dismissal under Rule 12(b)(6), the “assumption of truth” rule, Rule 8(d), and Gross and the effect of their combination on compound employment discrimination claims. Additionally, in order to correct the iniquitous results of this combination, this paper sets forth a new proposal for amending the Federal Rules of Civil Procedure to ensure that courts construe pleadings in employment discrimination cases in accordance with the Congressional intent embodied in the ADEA and the other anti-discrimination statutes impacted by Gross.

Keywords: Twombly, Iqbal, pleading, plausibility, Gross, FBL, Rule 8, Rule 12(b)(6), Rule 8(d), employment discrimination, ADEA, ADA, Title VII, FMLA, FLSA, GINA, discrimination, retaliation, compound

JEL Classification: J7, J70, J71, J78, K19, K20, K30, K39, K4, K40, K41, K42, K49

Suggested Citation

Clarke, Brian S., Grossly Restricted Pleading: Twombly/Iqbal, Gross and Cannibalistic Facts In Compound Employment Discrimination Claims (April 6, 2011). Utah Law Review, Vol. 2010, No. 4, p. 1101, 2011, Washington & Lee Legal Studies Paper No. 2010-13, Available at SSRN:

Brian S. Clarke (Contact Author)

Unaffiliated ( email )

United States

Washington & Lee University School of Law

Lexington, VA 24450
United States

Charlotte School of Law

2145 Suttle Avenue
Charlotte, NC 28208
United States

Western Carolina University - College of Business

Forsyth Hall 122G
Cullowhee, NC 28723
United States
828.227.7412 (Phone)


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