We all think of December as the season of giving. Unfortunately, prevailing defendants in Title VII cases don’t always feel that way. Under Title VII of the Civil Rights Act of 1964, prevailing plaintiffs enjoy compensatory damages, prejudgment interest, injunctive relief, and in some cases, even punitive damages when the discrimination is intentional. Additionally, attorneys’ fees are available to the prevailing plaintiff. Nothing brings home the potential downside of litigating a Title VII case like an award of attorneys’ fees, especially when the compensatory award isn’t sizeable.

The impact of this element of damages became very clear to me when I lost my first employment case more than 20 years ago. The CEO of one of my clients instructed his company’s comptroller to terminate the plaintiff, a pregnant female. In giving the instruction, he said, “She has always been a worthless employee. Now that she is pregnant, it can only get worse.” The female comptroller carried out the instructions and terminated the pregnant female employee. Later, the comptroller was fired for incompetence, but she found a part-time job as the plaintiff’s key witness in her pregnancy discrimination claim.

Apparently, the jury believed the plaintiff was a worthless employee, as the verdict against my client was only $7,500 in compensatory damages and $2,500 in punitive damages. After a brief celebration of a verdict far below the plaintiff’s last demand, we received her fee petition—and the celebration ended. The plaintiff was seeking attorneys’ fees in excess of $100,000. We were able to settle the attorneys’ fees petition at a much lower amount, but I always use that story to remind my clients of the potential consequences of litigating an employment case to verdict.

The whole issue of attorneys’ fees in employment litigation seems even more unfair when one realizes that a prevailing defendant doesn’t enjoy the same award. A plaintiff must only prevail to be entitled to fees. However, for a defendant to recover attorneys’ fees in a Title VII case, the court must find “that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978). In Christiansburg, the U.S. Supreme Court declined to adopt the defendant’s position to award attorneys’ fees to prevailing defendants. The Court concluded that doing so “would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.” Id. at 422.

Plaintiffs in employment cases are “the chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968) (a prior opinion dealing with a Title II plaintiff). Plaintiffs in these cases assume the role of a private attorney general, and the award of such fees would “discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.” 434 U.S. at 422. So, a prevailing plaintiff will recover attorneys’ fees in all but the most special circumstances. Conversely, a prevailing defendant may recover fees only when the plaintiff’s “claim was frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.” Id. at 422.

But all is not lost. Depending on the jurisdiction, court costs generally are awarded to the prevailing party. These costs can mount, and individual plaintiffs may have a difficult time paying back thousands of dollars when they fail to prevail. We know that the plaintiff’s former coworkers will be watching the lawsuit. It would be naïve to think that a substantial bill for court costs against a losing plaintiff has no deterrent effect, particularly when former coworkers learn the consequences of litigating against the employer. I always recommend that my clients seek court costs at the conclusion of successful litigation. I believe the court costs award serves a deterrent purpose. Additionally, many plaintiffs will surrender their right to appeal in exchange for a prevailing defendant’s agreement to forgive a court costs award. In the end, a successful court costs bill can save an employer the cost of an appeal.

Finally, defense counsel should remain informed of the local rules in a given venue to make certain that his firm’s timekeeping procedures are consistent with those local rules. There may come a time when a trial court agrees that a plaintiff’s claim was frivolous, unreasonable, or groundless. In that event, defense counsel should be ready to seek attorneys’ fees, and maintaining meticulous time records consistent with the local rules and governing authority regarding recovery of court costs is crucial.