Wait until you see how EASY it is to plead a claim of discrimination in federal court

A recent Eleventh Circuit decision serves as a sobering reminder to employers why a plausible claim — a mere inference of bias – is all it takes for a plaintiff to pursue discrimination claims.

The plaintiff is a white guy in his late 50s. In a complaint he filed in federal court, he claimed he was well qualified for the director-level position he held for a little less than three years. According to the plaintiff, he performed his duties as he understood them and was never disciplined or counseled for any misconduct or performance issues. He noted that although his employer had an annual review policy — and he asked for one several times — he never received one from his supervisor, a black man. Instead, his supervisor summarily fired the plaintiff, the only white man in leadership, on the sole ground that the plaintiff did not meet his supervisor’s “vision,” and the defendant gave his duties to a much younger back man who had been the plaintiff’s subordinate.

The litigators who read these posts know about the McDonnell Douglas burden-shifting framework and a “convincing mosaic” of circumstantial evidence. But those don’t come into play until after written discovery and depositions when parties file their motions for summary judgment. They are based on evidence.

Here, the plaintiff’s allegations of race and age discrimination, which sound flimsy to me, tbh, don’t require evidence to support them at the outset of the litigation. Instead, the Supreme Court has held at the pleading stage that “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” The plaintiff eclipsed that low bar by pleading that he was the only white man working in a leadership position with no performance issue or record of discipline who got fired with only an opaque and vague explanation and replaced with a much younger Black man who had been his subordinate.

The Eleventh Circuit noted that “employers may fire at-will employees [like the plaintiff] for any non-discriminatory reason, but the court is free to scrutinize an employer’s decision to check that it is not mere pretext for discrimination.”

Perhaps there’s more to this story than what the plaintiff pled in his complaint. For example, maybe the plaintiff did have performance issues, or the plaintiff’s supervisor explained why he did not meet the supervisor’s vision. However, the parties can explore those issues in discovery. But getting there doesn’t require the plaintiff to allege a comparator or to show a convincing mosaic of circumstantial evidence.

Instead, just enough facts in a complaint to suggest intentional discrimination is all it takes to plead claims of bias.