“Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases

Abstract

This brief essay was written for a symposium volume, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination, based on presentations at a conference at New York Law School in April 2012. It addresses the Supreme Court’s invitation in several different contexts for trial courts to evaluate the merits of the case on the basis of limited, even skewed, information. Piqued by the Supreme Court’s recent decision in Wal-Mart, we consider these issues from our different vantage points as academic and former federal judge, both involved for many years in civil rights and employment discrimination litigation in different settings. We share a concern about how substantive law on discrimination can be shaped, misinterpreted, and misread in many of these “only procedural” rulings. The essay begins with a brief discussion of Wal-Mart to illustrate how preliminary procedural decisions have implications for substantive law. We then examine how Twombly and Iqbal have affected the substantive law dimensions of Rule 12(b)(6) decisions in general, then consider the special problems that Iqbal and Twombly pose in employment discrimination cases in particular. We conclude with some general lessons to be drawn from seeing “substance” in preliminary procedural decisions, the implications of this inquiry for federal civil litigation, and raise questions for further exploration.