On Jan. 26, 2009, employees across America scored another important victory when the U.S. Supreme Court issued its decision in Crawford v. Metropolitan Gov’t of Nashville. Click for PDF.. The issue before the Supreme Court was whether Title VII’s anti-retaliation provision extended to protect employees from being fired for cooperating with their employer’s internal sexual harassment investigation.
The Supreme Court reversed a Sixth Circuit Court of Appeals’ decision and unanimously held that an employee, who speaks out about discrimination in answering questions during an employer’s internal investigation, is protected by Title VII’s anti-retaliation provision. Quite amazingly, the Sixth Circuit had held that employees were only protected from retaliation if they affirmatively initiated a complaint and were not protected from retaliation if they opposed discrimination in response to an employer’s inquiry.
Fortunately, the Supreme Court rejected the Sixth Circuit’s interpretation and made clear that “opposition” under Title VII’s anti-retaliation provision extends beyond situations in which a person takes affirmative action to speak out about illegal discrimination in the workplace. Therefore, the Crawford decision establishes that a person is protected from retaliation when they respond to employer’s questions in an investigation just as they would be if they filed a complaint with their employer.
The practical effect of the Crawford decision is that whenever an employee, in response to their employer’s internal investigation of discriminatory conduct, provides information that makes it clear that the employee “opposes” the discriminatory conduct occurring in the workplace, that employee will have protection from retaliation.
Here are some questions that I am frequently asked by prospective employment clients involving attorney’s fees:
Q. If I win my case, can the defendant be made to pay my attorney’s fees?
A. It depends on the kind of case. In the U.S., the general rule is that a prevailing litigant is not entitled to collect a reasonable attorney’s fee from the losing party. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). This is called the “American Rule”, which stands in contrast to the “English Rule”. In England, prevailing litigants are able to recover attorney’s fees from the losing party. But there are two important exceptions to the “American Rule” that are recognized by courts in the U.S. First, if the parties contractually agree that the loser shall pay the prevailing party’s attorney’s fees then such fees may be recovered against the losing party. Travelers Cas. and Sur. of America v. Pacific Gas and Elec. Co., 549 U.S. 443, 448 (2007). Second, if the statute giving rise to the claim/lawsuit provides for a recover of attorney’s fees by the prevailing party then the prevailing party may recover a reasonable attorney’s fees. Id. Virtually every federal employment related statute authorizes a recovery of attorney’s fees. See, e.g., Title VII, the ADA, the FMLA, and the ADEA. Additionally, many state employment related statutes authorize the recovery of a reasonable attorney’s fee by the prevailing party.
Q. Can I be made to pay the defendant’s attorney’s fees if I lose my employment related case at trial or it is dismissed?
A. Possibly. For example, a prevailing party, which includes defendants as well as plaintiffs, can recover attorney’s fees under Title VII. But a recovery of attorney’s fees may only occur if the court finds that the plaintiff’s claim was frivolous, unreasonable or groundless or the plaintiff continued to litigate after the claim clearly became so. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978); Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994). Therefore, it is unlikely that a defendant can recover attorney’s fees against a plaintiff unless the plaintiff’s claim truly lacked merit.
