Awarding Attorney Fees in Employment Cases
Employment lawsuits usually revolve around employment discrimination on the basis of race, religion, gender, color, national origin, age, sex, or disability. Federal legislation addressing these issues include: Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act of 1990 (ADA), among others.
These laws include “fee shifting” provisions, awarding attorneys’ fees to the discriminated-against individual. Under these statutes, winning attorneys are dubbed “private attorney generals,” charged with enforcing the rights of the public. Because of the wrong that the employer has done to the public in carrying out a policy of discrimination, the employer deserves the punishment of paying the other side’s fees.
However, the Supreme Court has decided that winning employees are not entitled to attorney’s fees merely because their lawsuit might have helped improve the employers’ discriminatory conduct, but without obtaining a final judgment on the matter. The reasoning behind this is that public policy encourages employers to voluntarily change their practices without fear of penalty in so doing.
In employment cases in state court, an award of attorney’s fees depends on state statute. The general rule is that attorneys’ fees cannot be awarded absent statutory authority. Specifically, state hearings officers and human rights referees, depending on state law, may or may not be granted the authority for awarding attorneys’ fees in employment discrimination cases. The statute may not mention anything about it, in which case it is up to the courts to decide what the statute means.
Once the court determines that an award of attorney fees are allowed under statute, the calculation of the actual amount depends on: the time, labor, and skill of the attorney, the novelty and difficulty of the issues, the giving up of other work, and the usual fees for employment cases.
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Last Modified: 02-08-2012 12:14 PM PST
