Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

We previously discussed attorneys fees in the context of employment discrimination cases, and noted that under Title VII, 42 U.S.C. § 2000e-5(k), a prevailing party is entitled to reasonable fees. We also noted that it has long been the case that although this provision, by its terms, does not distinguish between prevailing plaintiffs and prevailing defendants, it nonetheless has been held to apply almost exclusively to prevailing plaintiffs, unless plaintiff’s claim was frivolous. 

Last year we asked whether a prevailing defendant is entitled to any attorneys fees if the plaintiff has asserted multiple claims, and one claim has been deemed frivolous. The Supreme Court answered that question in Fox v. Vice where it unanimously held that as to a related attorneys fee statute, it:

“permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim. … So if a frivolous claim occasioned the attorney’s fees at issue, a court may decide that the defendant should not have to pay them. But if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff.”

So the question as to whether a prevailing defendant is entitled to a portion of its attorneys fees is somewhat settled when the plaintiff has asserted multiple claims and one or more is frivolous.

But going back to the broader issue, did the Fox case in any way impact the law as to prevailing defendants being entitled to attorneys fees only where plaintiff’s claim is frivolous?   

Apparently not -- a federal appeals court has just reaffirmed that in a case where the EEOC was the plaintiff, unless its claim is frivolous, unreasonable, or without foundation, the prevailing defendant cannot recover attorneys fees.

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In our blog of February 10, 2011, we predicted Supreme Court review of the issue of the awarding of attorneys fees to a prevailing defendant in a Title VII litigation. We said that “There has emerged a split in the federal courts around the country over whether a prevailing defendant is entitled to attorneys fees -- and how much -- if the plaintiff has asserted multiple claims, and only one has been deemed frivolous.  Most federal courts of appeal have ruled that where there are mixed frivolous and non-frivolous claims the prevailing defendant can recover attorneys fees.”

The Supreme Court has, in fact, just ruled on the issue in a case called Fox v. Vice.  For a unanimous court, Justice Kagan has held that the relevant attorneys fee statute, known as section 1988,

“allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim. … So if a frivolous claim occasioned the attorney’s fees at issue, a court may decide that the defendant should not have to pay them. But if the defendant would have incurred those fees anyway, to defend against non -frivolous claims, then a court has no basis for transferring the expense to the plaintiff.”

The bottom line: Most commentators in this area feel that the “but-for” test announced by the Court is fair and workable. It does not chill the filing of legitimate civil rights lawsuits, and only compensates a prevailing defendant for the burdens of defending a frivolous suit, without providing a windfall.   

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