Tis The Season Of Giving, Right?

We all think of December as the season of giving. Unfortunately, prevailing defendants in Title VII cases don't always feel that way. Under Title VII of the Civil Rights Act of 1964, prevailing plaintiffs enjoy compensatory damages, prejudgment interest, injunctive relief, and in some cases, even punitive damages when the discrimination is intentional. Additionally, attorneys' fees are available to the prevailing plaintiff. Nothing brings home the potential downside of litigating a Title VII case like an award of attorneys' fees, especially when the compensatory award isn't sizeable.

The impact of this element of damages became very clear to me when I lost my first employment case more than 20 years ago. The CEO of one of my clients instructed his company's comptroller to terminate the plaintiff, a pregnant female. In giving the instruction, he said, "She has always been a worthless employee. Now that she is pregnant, it can only get worse." The female comptroller carried out the instructions and terminated the pregnant female employee. Later, the comptroller was fired for incompetence, but she found a part-time job as the plaintiff's key witness in her pregnancy discrimination claim.

Apparently, the jury believed the plaintiff was a worthless employee, as the verdict against my client was only $7,500 in compensatory damages and $2,500 in punitive damages. After a brief celebration of a verdict far below the plaintiff's last demand, we received her fee petition—and the celebration ended. The plaintiff was seeking attorneys' fees in excess of $100,000. We were able to settle the attorneys' fees petition at a much lower amount, but I always use that story to remind my clients of the potential consequences of litigating an employment case to verdict.

The whole issue of attorneys' fees in employment litigation seems even more unfair when one realizes that a prevailing defendant doesn't enjoy the same award. A plaintiff must only prevail to be entitled to fees. However, for a defendant to recover attorneys' fees in a Title VII case, the court must find "that the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978). In Christiansburg, the U.S. Supreme Court declined to adopt the defendant's position to award attorneys' fees to prevailing defendants. The Court concluded that doing so "would undercut the efforts of Congress to promote the...