This is the fifth and final entry in a series of articles on the employment protections that are now law as part of the Women’s Equality Agenda, a series of eight bills signed by Governor Cuomo on October 21, 2015. Part I may be found here.Part II may be found here. Part III may be found here. Part IV may be found here.
Allowing Recovery of Attorneys Fees In Sex Discrimination Cases
In the United States, the default rule in most civil litigation is that each side is responsible for its own costs and attorneys fees. Most western countries adopt the “English Rule” where the loser in a lawsuit must also pay the attorneys fees of the winner. By contrast, the “American Rule” treats costs and attorneys fees as a transaction cost. The amount a party has to pay their lawyers, either through an hourly rate or a contingency fee, is a factor in determining whether it is worth it for the client to bring the lawsuit in the first place. It is also, of course, a factor when an attorney determines whether a case is worth taking.
There are exceptions to the American Rule. The laws prohibiting employment discrimination usually include fee shifting provisions so that an employee who prevails may recover his or her attorneys fees as well. The rationale for fee shifting provisions is that remedying unlawful discrimination in employment has a public value and that fee shifting gives appropriate incentives to attorneys to take such cases. This is particularly true in employment cases where monetary damages are sometimes limited.
Federal laws prohibiting employment discrimination, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act all have attorney fee shifting provisions. New York City’s Human Rights Act also provides for fee shifting. By contrast, the New York State Human Rights Law did not provide that a successful plaintiff could recover attorneys fees except in housing discrimination laws.
S3/A7189 amends the New York State Human Rights Law to allow a court, in its discretion, to award attorneys fees to a prevailing party in the case of sex based employment discrimination. It also allows such an award in all cases of housing credit related discrimination, or sex based credit discrimination. The law allows prevailing defendants (employers) to recover attorneys fees only if the defendant shows that the employee’s claim was frivolous.
The attorneys fee shifting provision only applies to private litigants. It does not apply in cases brought by the Division (although a claimant’s private attorney may recover fees incurred in representing his or her client in such a proceeding). It also applies to both men and women who bring claims of discrimination based on sex.
Employment attorneys in New York unquestionably have had to pass on taking some meritorious employment discrimination cases because of the lack of a fee shifting provision in the New York State Human Rights Law. The new law should provide incentive for attorneys to take on sex discrimination cases. There are still efforts from the plaintiff’s bar to further amend the law to have fee shifting for all claims of employment discrimination in order to ensure access to justice for all.