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Plaintiffs' Employment Lawyers Are No Longer Secure
Plaintiffs' employment lawyers contemplating bringing Title VII or other discrimination suits have long felt secure in the knowledge that, even if they lose at trial or at the summary judgment stage, their client will not be assessed attorney's fees. Any ambiguity regarding the meaning of a “prevailing party” entitled to fees under the Federal Rules was resolved by the Supreme Court's decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1977). The Supreme Court denied fees to the prevailing defendant employer in that Title VII case, pointing out that the EEOC's actions in bringing the case could not be characterized as without merit or unreasonable. Specifically, the Court held that “a plaintiff may not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable or groundless.” Id. at 422. Indeed, had the Supreme Court ruled otherwise, many lower-income individuals with meritorious discrimination claims might have been dissuaded from pursuing them.
Subsequent cases have shown that the Christiansburg standard is an exceedingly difficult one for a defendant to meet. For example, in Hill v. Board of Education, CV 87-3008 (ILG) (E.D.N.Y. 1993), a case litigated by this writer, the court at trial granted the defendants' motion to dismiss after the conclusion of plaintiff's case, noting that the plaintiff's Title VII claim had no merit whatsoever and that no evidence had been produced in support of his claim. Nonetheless, the court later denied defendants' motion for attorney's fees, finding that the Christiansburg test had not been satisfied.
The near-immunity of unsuccessful discrimination plaintiffs to motions by prevailing employers for attorney's fees, however, should not obscure that fact that Fed. R. Civ. P. 54 (d) also provides for the award of costs to a prevailing party. For several reasons, many plaintiffs' employment lawyers overlook or misunderstand the fact that the standard for awarding costs to a prevailing party is quite different than the one for attorney's fees. In Cosgrove v. Sears, Roebuck & Co., 191 F.3d 98 (2d Cir. 1999), an unsuccessful plaintiff in a Title VII case appealed the district court's award of costs against her, arguing that the defendant had not satisfied Christiansburg's “useless, baseless or frivolous” test. The Second Circuit disagreed, stating that Rule 54(d) “grants costs to a prevailing party as a matter of course in the absence of a countervailing statute or rule.” Id. at 101 [emphasis added]. In addressing the argument that the Christiansburg test should also apply to applications by prevailing employers for costs, the court stated that “[w]e see no reason … to apply the same type of heightened standard to the assessment of costs.” Id.
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