Employees Now Less Likely to Pay Costs of Suit.
Prevailing defendants litigating against employees under the Fair Employment and Housing Act (FEHA) rarely recover attorney’s fees from the employee. But, even when the employee’s case had merit, they have routinely recovered the costs of litigation if winning at trial.
In Williams v. Chino Valley Independent Fire District, the Court held that a prevailing defendant is not entitled to an award of costs from the employee unless the lawsuit was brought or continued on “frivolous, unreasonable or groundless” claims. The Court reasoned that while the Code of Civil Procedure Section 1032(b) allows the prevailing party to recover litigation costs, the Government Code Section 12965(b) trumps the Code of Civil Procedure and allows the court discretion when awarding fees and costs.
Regarding their previous decision in Davis, where the Court held that under FEHA costs should be awarded as a matter of right, the Court now unambiguously rejects this view as too broad. The Williams Court looked to federal precedent and concluded that an employer cannot collect costs unless found that the employee’s claim was brought without foundation.
Employees More Likely To Press On Towards Trial.
Before Williams the threat of a cost award to a defendant could significantly deter a plaintiff with limited financial resources from bringing a claim of discrimination. Now, plaintiff attorneys will be more bold in pressing forward to reach final determination of the issues.
Defense attorney’s fees can be hundreds of thousands of dollars through trial. “Costs” of litigation are generally much less, but can be as high as $50,000 to $100,000. Employers have used the “cost of litigation” as a threat against employees they know cannot pay such amounts. I suspect the Court looked at the strong public policy behind the Fair Employment Housing Act to conclude that in this area of practice, the “playing field” is seldom equal, with corporate resources pitted against the individual employee. The Williams decision further advances the laudable public goal of curtailing discrimination in employment.