In discrimination cases, a prevailing employee is entitled to all attorneys’ fees and costs of litigation. This “fee-shifting” is designed to encourage private attorneys to vindicate civil rights. In contrast, a prevailing employer is not entitled to attorneys’ fees unless the claims are “frivolous, unreasonable or without foundation.” The question recently arose about what to do when some of the employee’s claims are frivolous but others have substance. The Unites States Supreme Court unanimously answered the question in Fox v. Vice (June 6, 2011) by ruling that an employer is entitled to fees on frivolous claims only where it incurred fees defending solely against the frivolous claim. If the incurred fees involved both meritorious and frivolous claims, then the employer is not entitled to its attorneys’ fees.
The Supreme Court’s ruling makes it difficult for employer-defendants to recover fees in cases with both frivolous and non-frivolous claims. In effect, the employer-defendant may recover attorneys’ fees only where the entire case is frivolous.
June 13, 2011 – Castronovo & McKinney, LLC – Paul Castronovo