Employers may benefit from detainee's lawsuit

There are very few silver linings for Kansas employers in the recent employment law changes.

The Genetic Information Nondisclosure Act, Americans With Disabilities Amendment Act, the Lily Ledbetter Fair Pay Act, changes to the Family And Medical Leave Act, recent U.S. Supreme Court decisions on workplace retaliation, and the soon-to-be-passed Employee Free Choice Act and Employment Non-Discrimination Act have all increased regulation and the probability of employee litigation against Kansas business owners.

But there is one silver lining. It was not Javaid Iqbal's intent to help employers when he filed a lawsuit against former U.S. Attorney General John Ashcroft, although the unintended consequence of his civil rights lawsuit against the former attorney general has given business owners everywhere fresh ammunition to combat frivolous lawsuits.

The Iqbal saga started in the wake of the al-Qaida attacks in September 2001, when the FBI and the Department of Justice launched a massive investigation. Four thousand FBI special agents and 3,000 support personnel joined in the effort. More than 1,000 people with suspected links to the attacks were questioned, and 762 suspects were held on immigration charges, with almost 200 deemed to be persons of "high interest." These folks were held under restrictive conditions designed to prevent them from communicating with the general prison population and the outside world.

Iqbal was one of the detainees. He was arrested and charged with fraud in relation to identification documents and conspiracy to defraud the United States. He pleaded guilty, served his time in prison and was deported to his native Pakistan. Once safe on his own turf, Iqbal sued 34 federal officials and 19 "John Doe" federal corrections officers, including the highest level of federal law enforcement, Ashcroft and FBI director Robert Mueller, claiming that he was harshly treated while confined in the maximum security prison. Iqbal claimed he was kicked, punched, dragged across his cell and denied the opportunity to pray because of his race, religion or national origin. Iqbal alleged Ashcroft as "principal architect" and Mueller as "instrumental" in the adoption and implementation of an unconstitutional policy that subjected Iqbal to harsh conditions of confinement on account of his race, religion, or national origin.

In his complaint, Iqbal's lawyer used the tried-and-true tactic used by plaintiffs: throw enough allegations against the wall and something is likely to stick. Iqbal's complaint filed in federal court in New York contained allegations in the form of conclusions against defendants Ashcroft and Mueller, but contained no evidence that the claimed policy of mistreatment was designed and implemented by those two defendants.

The United States Supreme Court, relying on a 2007 anti-trust case, threw out Iqbal's lawsuit against Ashcroft and Mueller because Iqbal failed to present "plausible" evidence of the allegations. The court ruled that a pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." "Nor," said the court, "does a complaint suffice if it tenders 'naked assertion(s)' devoid of 'further factual enhancement.' " "Plausibility" is more than "possibility" and "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," the court ruled.

The unintended consequence of Iqbal's lawsuit and the Supreme Court's ruling (and the silver lining for Kansas employers) is that plaintiffs must now have factual assertions based on "facial plausibility" to their claims, and weak or frivolous lawsuits may never reach the courtroom.

Make no mistake about it. Defending against an employee's claim of harassment or discrimination is expensive. And with the electronic discovery rules requiring retrieval and production of e-mail and other electronic documents in a lawsuit, employers may end up paying computer technicians about what you pay your lawyers. A decision that allows courts to dismiss lawsuits without plausible evidence before discovery and litigation get started is truly good news for defendant employers. Plaintiffs and their attorneys may pause to reflect on the wisdom of filing lawsuits that are easily dismissed by the courts.

Like Iqbal, plaintiffs' attorneys don't give up, however. There are reports of meetings to plan strategy to undo what is viewed as a devastating blow to plaintiffs' attorneys lifeblood litigation (and livelihood), and there may be legislation introduced soon designed to reverse the effects of the Iqbal decision. But in the meantime, Kansas employers should enjoy the silver lining.

Alan Rupe is managing partner at Kutak Rock law firm's Wichita office. Interested in writing for "A Business Perspective"? Contact Dan Loving at 316-269-6706 or dloving@wichitaeagle.com.