Loser Pays Winner's Court Costs and, Sometimes More

 Yes, you too can be hit with an award of attorney's fees.  In federal court, the losing party is almost always ordered to pay the other side's court costs.   And, yes, if the plaintiff has a "frivolous" case, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees.  See this report of a case in which the EEOC was ordered to pay $4.5 million in attorney's fees for the employer.  It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous.  And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.  

But, a plaintiff should always have enough evidence to avoid charges of frivolousness.  Always.  Factors that help show frivolous include poor investigation prior to suit.  The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit.  Everyone knows they usually do not conduct an actual investigation.  Unlike the private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation.  Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (ie, quick) judgment a close call.  if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then they really should not be filing suit. 

This time, the EEOC is found to have filed a very large lawsuit without enough evidence to overcome summary judgment.  Many federal court judges are predisposed to find against employees.  But, still to award attorney's fees at all, much less this large, suggests there may have been issues with the quality of the EEOC's evidence.  

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court.  That is a real risk in every discrimination lawsuit.  And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs.  Court costs can amount to $5,000 or more.  Think before you leap. 

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