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.