Adding Insult to No Injury: The Denial of Attorney's Fees to 'Victorious' Employment Discrimination and Other Civil Rights Plaintiffs

Abstract

Most litigants involved in lawsuits in the United States are responsible for the cost of their own attorney’s fees. However, because Congress believed that certain types of claims, including employment discrimination and other civil rights claims, are important enough to encourage potential plaintiffs and their attorneys to pursue these actions, it enacted several fee-shifting statutes. These statutes provide that the prevailing party may recover a reasonable attorney’s fee. While these statutes typically do not exclude prevailing defendants from recovering their attorney’s fees, usually only prevailing plaintiffs are entitled to recover what can sometimes be a significant amount. However, a problem with these statutes occurs when a plaintiff is able to prove that a defendant violated his rights but is then awarded only nominal damages. In most of these cases, courts have denied these plaintiffs’ requests for attorney’s fees, despite the fact that they were prevailing parties. This Article will argue that the Supreme Court should revisit this issue and conclude that in employment discrimination and other civil rights cases where plaintiffs are awarded only nominal damages, such plaintiffs, as prevailing parties, should typically be awarded attorney’s fees.

Keywords: lawsuits, attorney’s fees, fee-shifting, damages, nominal damages, employment discrimination claims, civil rights claims

JEL Classification: J78, K10, K40