The federal and California courts apply the same standards in awarding attorney's fees in discrimination cases. So, the recent case of EEOC v. Agro Distribution LLC (opinion: here) is relevant to awards of fees in California. And I can write about other circuits' cases if I want to. So there.
The reason I'm writing about this one is that the EEOC pursued a case well beyond the point that it should have determined it lacked merit. The investigator initially assigned to the charge was on a mission. The plaintiff's deposition doomed the plaintiff's claim. The settlement demands were unreasonably high.
The court of appeals first decided that EEOC failed to "conciliate" or attempt to resolve the case in good faith. The agency made a very high demand and then immediately closed conciliation efforts when the demand was rejected, despite the employer's attempt to engage in settlement negotiations. However, the court also found that failure to conciliate is not a jurisdictional defect.
The court then held that the district court's award of fees against the EEOC was within the court's discretion. The district court awarded about $225,000 in fees for the period of time following the plaintiff's deposition until summary judgment. (That's a heck of a bill for post-deposition litigation through summary judgment, but the district court did not find fault in the billings). The court of appeals agreed with the district court that after the plaintiff's deposition, the agency's further prosecution of the case was absolutely unjustifiable.
This case may be used in situations when a case of arguable merit at inception is revealed through discovery to be frivolous, unreasonable, or without foundation. Fees should be awarded in favor of the employer from that point, if not from the beginning of the case.
DGV