Two circuits weigh in today on the award of attorneys fees, with both outcomes favoring plaintiffs' counsel. One, from the Second Circuit, tackles an unreasonably low $204 fee for a successful trial on a claim of FMLA interference. The other, from the Fifth Circuit, reverses the award of Eastern District of Texas attorneys' rates in a Title VII case to a trial team from Oakland, California, where "an avalanche of unrebutted evidence" establishes that no addition al local lawyers could or would have taken the case.
Here's a lesson that some must re-learn, even twenty years after the passage of the 1991 Civil Rights Act that reformed the remedial provisions of Title VII: compensatory damages are an entirely separate kind of relief from make-whole back- and front-pay. The Second Circuit reverses a judge's order denying make-whole relief on the ground that the jury award of $300,000 in compensatory damages (for pain, suffering and loss of reputation) was enough.
Employers like mandatory arbitration policies, and avoidance of judicial review - until they don't. Here's a case from the Second Circuit (decided 2-1) that affirms an arbitrator's interlocutory decision to allow a putative Title VII pay and promotion class action, over the employer's objection that it did not consent to such a procedure.
The Second Circuit, in an non-precedential opinion, reverses summary judgment and remands an ADEA and New York State Human Rights Act claim back to the district court for trial. The panel concludes that something seemed to smell when a 59-year-old auto service department employee was dropped in favor of 36-year-old, . . . .and the best that the employer could produce was affidavits of witnesses - years after the fact - disparaging the employee's organizational skills, flexibility and attitude.
The Second Circuit becomes the first U.S. Court of Appeals to publish an opinion applying Ricci v. DeStefano, 129 S. Ct. 2658 (2009), to a reverse-discrimination challenge to a Title VII settlement agreement. In a 139-page opinion, including a special concurrence, the panel remands a nine-year-old case to reconsider whether the Justice Department and New York City Board of Education had a "strong basis in evidence" that the Board's tests and recruiting practices violated Title VII.
Updated to May 8, 2019