Until last week, employers who prevailed in discrimination actions under California’s Fair Employment and Housing Act – like all other litigants – were entitled to recover certain statutory court costs. These included such costs as filing fees, jury fees, and deposition costs. That all changed with the California Supreme Court’s May 4, 2015 decision in Williams v. Chino Valley Ind. Fire Protection Dist. 

According to the Court, for employers who prevail in FEHA actions to recover those costs, they must meet the same standard used to award attorneys’ fees. That is, the prevailing employer must show that the plaintiff’s claims were frivolous, unreasonable, or groundless. Prevailing plaintiffs in these lawsuits continue to receive awards of fees and costs automatically.

The courts rationalize this distinction by saying they don’t want to discourage employees from bringing potentially valid claims. But where is the concern for a system that encourages groundless claims? Because in that regard, we just dropped the bar a little lower.

What can employers do?

• The best option is obviously to avoid employment claims in the first place. We’ve discussed here, here, here, and here ways to try to do that.
• If you can’t avoid a lawsuit, there are a variety of ways to try to make plaintiffs potentially responsible for all or some of your attorneys’ fees, such as requests for admissions, offers of judgment, and sanctions motions.
• Also, if you can’t increase the plaintiffs’ downside, try to decrease their upside. Mandatory arbitration agreements reduce the likelihood of the plaintiff obtaining an exorbitant, emotion-fueled recovery.