Best Ohio Employment Discrimination Attorney Answer: What kinds of damages can I get for my claim? How can I make my employer responsible for my attorney’s fees? Why sue under Ohio law if I can get attorneys fees under Title VII?
Many of the wrongfully fired that come to see our employment discrimination lawyers are surprised to learn that, as great as their case may be, they are not automatically entitled to an award of attorneys fees if they win their case against their former employer. As good as our employment law attorneys are at obtaining great settlements and verdicts for our clients, there is nothing they can do to force an employer to pay these fees. This means that the client will end up paying their own attorneys fees out of the settlement. This is a product of the “American Rule,” which says that regardless of who wins a case, each side pays their own cost. This is distinctly different than the “English Rule,” which says that the loser pays attorneys fees (“English” refers to the British legal system, upon which the American legal system was based).
Of course, the legislature is free to make exceptions to the American Rule, and it has done so in several instances, usually with the goal of making the legal system more accessible and punishing certain behaviors. Such “fee-shifting” statutes are abundant in employment litigation; one may seek attorneys fees for claim arising out of violations of the Family and Medical Leave Act (“FMLA“), violations of the Fair Labor Standards Act (“FLSA“) (as well as Ohio’s minimum wage and overtime statute, R.C. § 4111.10), Worker’s Compensation retaliation, and Whistleblower retaliation.
Likewise, certain statutes allow a court to award attorneys’ fees at its discretion, such as claim for discrimination under the Age Discrimination in Employment Act (“ADEA“), the Americans with Disabilities Act (“ADA“), and Title VII of the Civil Rights Act of 1964, which makes it unlawful for employers to discriminate against employees based on their race/color, religion, gender, and national origin.
While the fee-shifting statutes described above make the payment of attorneys’ fees mandatory upon a verdict for the employee, the award of attorneys fees under Title VII, the ADEA, and the ADA is discretionary, and are frequently awarded. Discretionary means that each court gets to decide whether to award fees on a case by case basis. However, only in rare cases, can an employer obtain attorneys fees against an employee who brings frivolous claims. This is more than just losing; the employer must show that the claims were “frivolous, unreasonable or without foundation.” Of course, the risk of paying the other side’s attorneys fees creates a lot of incentive for parties to settle discrimination suits before going to trial.
The recent decision in Perry v. Autozone Stores, Inc., demonstrates this theory well, as Autozone is now probably regretting its decision to fight its former employees “all the way.”
In Perry, the plaintiffs were all former employees of Autozone. Shana Perry had alleged that she had been sexually harassed by her store manager, and after Autozone began investigating, her claims were corroborated by two other employees, Damon Quiney and Daryl Harper. Quiney and Harper were subsequently fired, and Perry went on to be harassed by her district manager for months after their terminations. Quiney and Harper sued for wrongful termination because under Title VII, employers cannot retaliate against employees that report gender discrimination or sexual harassment. In fact, your boss, manager or supervisor cannot retaliate against you even if you just participated in an investigation about discrimination or retaliation. Many of the employment laws discussed above have anti-retaliation provisions. (See Lawyer: What Is Retaliation For Reporting Sexual Harassment?; Retaliation: Now That’s A Lot Of Waffles!; Who Can I Sue For Retaliation At Work?; Can I Be Fired For Refusing Help In A Work Cover-Up?; and Can My Boss Wait To Fire Me To Avoid A Retaliation Claim?).
At a jury trial, the jury awarded Perry $150,000 in compensatory damages and $400,000 in punitive damages. It awarded Quiney $123,300, and it awarded Harper $160,000. Finally, the trial court awarded the plaintiffs’ counsel $193,157.16 in attorney’s fees.
After losing several post-trial motions, Autozone appealed to the Sixth Circuit Court of Appeals, which affirmed the findings and decisions of the trial court in a short, two page opinion:
We have thoroughly reviewed the record, the applicable law, and the parties’ arguments, and we discern no error in the district court’s conclusions. We therefore hold that the evidence supported Plaintiffs’ claims and damages, that AutoZone failed to establish the Faragher/Ellerth defense, that the jury was properly instructed, and that the district court did not abuse its discretion in awarding fees and costs.
Subsequently, the employees moved the Court of Appeals for an additional $86,910.00 in fees and $823.80 in costs in defending the appeal. While Autozone had no basis to oppose the fee request, it did argue that the fees were excessive, and requested that the Court reduce the fees by 50 percent. While the Court did ultimately reduce the fees awarded, it did not reduce them by anywhere near as much as Autozone was seeking:
Although we do not question Plaintiffs’ counsel’s representations regarding the amount of time she actually expended on this matter, the lack of detail in the billing statement does raise concerns regarding the reasonableness of the time billed. We therefore reduce the compensable time by 15% to 246.2 hours total. Thus, counsel will be compensated for 246.2 hours at a rate of $300 per hour. … For the foregoing reasons, we award Plaintiffs’ $73,860.00 in attorney’s fees and $823.80 in costs.
Ohio’s employment discrimination laws differ with Title VII, as there is no express provision for attorneys’ fees (Although, Ohio's workers’ Compensation retaliation laws do provide for automatice attorneys' fees). This does not mean that attorneys fees are never available, however – they are just harder to get. Under Ohio law, an employee can only obtain attorneys’ fees as part of a request for punitive damages at trial, which requires a finding of actual malice (as a side note, this would seem to imply that retaliation claims provide for mandatory attorneys fees, although this is not the actual law). So, why would an employee ever choose to sue under Ohio law, rather than Title VII? There are number of strategic reasons, but the most significant one is that Ohio courts and Ohio juries are generally more favorable to plaintiffs. It is much easier for an employer to get a case thrown out in federal court, for example, than in state court. Thus, depending on the venue, it may actually be able to leverage a higher settlement even without the threat of attorneys’ fees.
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