No Title VII Attorney’s Fees for Successful Defendants Unless Plaintiff’s Claim is Frivolous; Burden of Proof on Defendants; Precise Analysis Requried

If a plaintiff wins an employment discrimination case under Title VII, he/she is entitled to an award of attorney’s fees.  A question we are asked all the time is: what happens if the plaintiff loses?  Can the defendant claim an award of fees too?

The answer is:  it depends.  If the claim is found by the court to be “frivolous” a successful defendant may be entitled to an award of fees.  The legal standard is that the claim must be “frivolous, unreasonable or without foundation.” (See Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990).) 

There is an important ripple in this rule.  Fees will only be awarded to those portions of the case that are frivolous. Thus, if a plaintiff loses but some of the claims were plausible, fees will not be awarded to the defendant with respect to that part of the case, even though the defendant prevailed. (See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006).)

The analysis can be tricky in cases where it is difficult to determine which lawyer worked on which part of the case.  In Harris v. Maricopa County Superior Court, the defendants prevailed in a discrimination claim and the court found that a portion of the plaintiff’s claim was, indeed, frivolous. But the court had trouble figuring out precisely how much to award and it proceeded to allocate “general” legal work among the various claims, assigning a percentage to the claims that were found to be frivolous.

The Ninth Circuit, in a divided decision, found that this was improper. The appellate panel’s majority held that the court had to make specific finding that specific work was devoted to a specifically frivolous claim in order for the defendant to recover fees.  The court duly noted that the burden of proof is on the claiming defendant:

To quote the court: 

“A civil rights case such as the instant one that contains both non-frivolous and frivolous claims presents the problem of allocating fees, among those claims. The proper allocation of attorneys fees among such claims, when a defendant seeks to recover fees, is both simple and obvious, at least in theory. Fees may be awarded only for frivolous claims, and a defendant
bears the burden of establishing that the fees for which it is asking are in fact incurred solely by virtue of the need to defend against those frivolous claims. That is because here as in cases involving attorneys fees generally, “[t]he burden of establishing entitlement to an attorney’s fees award lies solely with the claimant.”

The court continued:

Accordingly, a defendant must demonstrate that the work for which it asserts that it is entitled to fees would not have been performed but for the inclusion of the frivolous claims in the complaint. To do otherwise -- as when a court simply divides a defendant’s total attorney’s fees equally across plaintiff’s frivolous and nonfrivolous claims and attributes to the frivolous civil rights claims a pro-rata share of those total fees (with no demonstration that such fees were in fact incurred solely in order to defend against the frivolous claims) -- would be to risk requiring a plaintiff to pay defendants’ attorneys fees incurred in defeating his nonfrivolous civil rights claims, an outcome barred by our precedent and that of the Supreme Court.”

A copy of this ruling is attached for your convenience.

Our firm regularly advises employers, unions, and individual employees about issues that arise in the workplace. Feel free to give us a call if you have questions or issues in this area.

PDF icon Harris v. Maricopa (atty fees).pdf209.96 KB
Litigation Topics: