Title VII provides that a prevailing party in a litigation commenced under that statute is entitled to reasonable attorneys fees. This has almost uniformly been applied to prevailing plaintiffs. However, courts have awarded reasonable attorneys fees to a prevailing defendant where the plaintiff’s claim is deemed frivolous.
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. Only one court has held that a prevailing defendant is not entitled to attorneys fees if the plaintiff has asserted even a single non-frivolous claim.
Similarly, there is a split in the federal courts over the amount of attorneys fees which can be awarded to a a prevailing defendant where there are mixed frivolous and non-frivolous claims. The latest decision, arising out of the appeals court in California, holds that the defendant may be awarded fees only for legal services related exclusively to the frivolous claim. Moreover, the court ruled that there should not be an equal pro rata allocation for fee purposes with regard to all the claims asserted by the plaintiff, but that the defendant bears the burden of showing that the fees it seeks relate only to the work done to defend against the frivolous claim. There was a vigorous dissent.
Not easy to figure out, but given the split in the courts, and the fact that attorneys fees in employment discrimination cases is of paramount importance to parties and practitioners, this is a subject that may see Supreme Review some time very soon.