That time when all the employment lawyers got paid and the litigants got zilch!

Just about the only folks guaranteed to get paid in an employment discrimination case are the lawyers.

Employers generally pay the lawyers representing them by the hour. Conversely, employee-rights attorneys generally representing plaintiffs in these types of cases do so on a contingency basis, meaning that they only get paid if their client settles or prevails at trial. Otherwise, when the plaintiff loses, the plaintiff’s lawyer goes home empty-handed too.

Except, last month, the Third Circuit Court of Appeals upheld an award of $177,187.08 in attorneys’ fees and $13,259.50 in costs to the plaintiff’s lawyer, even though the plaintiff herself got nothing.

How could this happen?

A jury concluded that the defendant-employer discriminated against the plaintiff-employee when it fired her. So, it awarded the plaintiff $285,000 in damages. However, the jury also found that the employer would have made the same decision regardless of the illegal motive. So, the trial court judge took are the $285K and awarded the plaintiff no damages.


However, the District Court concluded that the defendant, which did discriminate after all, still had to pay for some of the plaintiff’s attorneys’ fees and costs.

Not too keen on paying its own lawyers and the plaintiff’s attorneys, the defendant appealed. But, the Third Circuit found no error in the lower court’s ruling and affirmed the decision.

Why, you ask?

The defendant conceded that the lower court could consider “the significance of the legal issue on which [the plaintiff] prevailed” and “the public purpose served by the litigation” when ruling on her petition for attorney’s fees and costs. And, basically, that’s exactly what the lower court did.

Maybe, next time, the defendant won’t be so forthcoming.

While this particular outcome is an anomaly, win or lose, employment litigation is hecka-expensive.

“Doing What’s Right – Not Just What’s Legal”
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