Amicus Brief — Christiansburg Garment Co. v. EEOC

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FILED

' OCT 3 1977

— CLERK

In THE

Supreme Court of the United States

OctToser TERM, 1977

No. 76-1383

CHRISTIANSBURG GARMENT COMPANY,

. Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

On Writ of Certiorari to the United States

of Appeals for the Fourth Circuit

BRIEF FOR LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW AS AMICUS CURIAE

CHARLES A. BANE

Tuomas D. Barr

Co-Chairmen

ARMAND DERFNER

NORMAN REDLICH

Trustees

Rospert A. MURPHY

RICHARD T. SEYMOUR

WILIA E. CALDWELL

Staff Attorneys

Lawyers’ Committee for

Civil Rights Under Law

733 - 15th St., N.W.

Suite 520

Washington, D.C. 20005

Attorneys for Amicus Curiae

Wauseon . Gras Pumrrme Co.. tc. - Ra 71-6008 . Wasumeton. OC. 20001

—

1. Introduction

2. The Standard Petitioner Seeks Would Thwart

the Purpose of Title VII

3. Congress Has Consistently Intended Party-

“Neutral” Attorneys’ Fees Authorizations To

Be Implemented in Accordance With the Stand-

ards Adopted in the Judgment Below

Conclusion

a. ie

TABLE OF AUTHORITIES

Cases: Page

Albermarle Paper Co. v. Moody, 422 U.S. 405

(1975) 5, 6, 10

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) 2n, 11

Bolton v. Murray Envelope Corp., 553 F.2d 881

(5th Cir. 1977) 6n

Bradley v. School of Richmond, 416 U.S. 696

(1974) 2n

Byram Concretanks, Inc. v. Warren Concrete Prod-

ucts Co., 374 F.2d 649 (3d Cir. 1967) lin

Carrion v. Yeshiva Univerity, 535 F.2d 722 2d

Cir. 1976)

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353 (D. Del. 1974

EEOC v. Bailey Co., Inc. —— F.2d ——., No. 76-

1045 (6th Cir. Sept. 20, 1977) 8

EEOC v. MacMillan Bloedel Containers, Ine., 503

F.2d 1086 (6th Cir. 1974)

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)

Grubbs v. Butz, 548 F.2d 973 (D.C. Cir. 1976)

International Brotherhood of Teamsters v. United

States, —— U.S. —— (1977)

Jaspers v. Bernstein, C.A. No. 76-1411 (D.D.C.

Sept. 19, 1977)

Johnson v. Railway Express Agency, Inc., 421 U.S.

454 (1975)

Meeker v. Lehigh Valley R. R., 236 US. 412

(1915) ...... 12

Newman V. Piggie Park Enterprises, Inc., 390 U.S.

400 (1968) — 6, 7, 16

New York State Dept. of Social Services v. Dub-

lino, 413 U.S. 405 (1973) 15n

eos arti Board of Educ. of Memphis, 412

US. — en, 15n

— F.2d —, 14 EPD

77637 (D. Cir. Sune | 30, 1977) 9, 15n

. Corp., 444 F.2d 791 (4th

404 U.S. 1006 (1971) 8n

—

„ SPs FF

— —

TABLE OF AUTHORITIES—Continued

Page

Stanton v. Bond, 429 U.S. 973 (1970) 2n

United States v. Allegheny-Ludlum Industries, Inc.,

558 F.2d 742 (Sth Cir. 19777 7

United States v. Local Union No. 3, IUOE, 6 EPD

4 8946 (N. D. Calif. Nov. 9, 1973) 9n

United States Steel Corp. v. United States, 519

II TEE 7n

Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th

r 7n

Wright v. Stone Container Corp., 524 F. 2d 1058

(8th Cir. 197595 — — 6-7n

Statutes and Regulations:

I —P0————— 18n

1 : 12

CG — 14n

I ee 10n

| Te 18n

ern 14n

C 13

I 13

e 14n

——T——————— 14n

. — 10n, 15n

I An, 14, 15n

e 4

42 U.S.C. 5 2000-5 (f) (1 9n

42 U.S.C. 6 4911(d) — 14n

CS . 18n

Pub. L. No. 92-261, 86 Stat. 1 10n

Executive Order * 30 Fed. Reg. 12319

(1965) ........... 10n

Legislative Materials:

S. Rep. No. 92-414, 92d Cong., 2d Sess. (1971) 13n

S. Rep. No. 92-451, 92d Cong., 2d Sess. (19717 13n

H.R. Rep. No. 92-238, 92d Cong., Ist Sess. (1972). 10n

TABLE OF AUTHORITIES—Continued

Page

LEGISLATIVE HISTORY OF THE EQUAL EMPLOYMENT

OPPORTUNITY ACT OF 1972 (Senate Committee

Print, 92d Cong., 2d Sess.) )) — 10n

S. Rep. No. 92-1160, 92d Cong., 2d Sess. (1972) 14n

S. Rep. No. 94-251, 94th Cong., 2d Sess. (1975) In

S. Rep. No. 94-295, 94th Cong., Ist Sess. (1975) 14n

S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976)... 16n

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess.

(1976) WW —

122 Conca. Rec. (daily ed. 1976) 14n, 16n

Other Materials:

ANNUAL REPORT OF THE DIRECTOR, ADMINISTRA-

TIVE OFFICE OF THE U.S. Courts (1977) 8n

EEOC, 10TH ANNUAL REpPorT (1976) 8n

In THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1383

CHRISTIANSBURG GARMENT COMPANY,

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF FOR LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE *

The Lawyers’ Committee for Civil Rights Under Law

was organized in 1963 at the request of the President of

the United States to involve private attorneys throughout

the country in the national effort to assure civil rights

to all Americans. The Committee’s membership today

includes two former Attorneys General, ten past Presi-

dents of the American Bar Association, two former So-

licitors General, a number of law school deans, and many

of the Nation’s leading lawyers. Through its national

office in Washington, D.C., and its offices in Jackson,

* The parties’ letters of consent to the filing of this brief are

being filed with the Clerk pursuant to Rule 42(2).

Mississippi, and eight other cities, the Lawyers’ Com-

mittee over the past fourteen years has enlisted the serv-

ices of over a thousand members of the private bar in

addressing the legal problems of minorities and the poor

in voting, education, employment, housing, municipal

services, the administration of justice, and law enforce-

ment.

The primary objective of the Lawyers’ Committee is

to help develop the legal resources necessary to enforce

fully the civil rights of minorities and poor people. Pur-

suant to that objective, we seek to enlist the services of

the private bar in aid of the individual rights secured

by the Constitution and federal civil rights laws. That

effort, in our extensive experience, is heavily dependent

upon the availability of court-awarded attorneys’ fees to

plaintiffs who successfully carry on litigation to enforce

congressional civil rights policies. Statutory authoriza-

tion for such awards is a familiar legislative mechanism

for encouraging private enforcement of congressional

policies. The correct interpretation and implementation

of such legislation is critical to a substantial part of the

Committee’s work. Consequently, for several years we

have operated an Attorneys’ Fees Project as an adjunct

to our substantive litigation activities. Through that

project we have provided assistance to Congress in con-

nection with its consideration and passage of civil rights

attorneys’ fees legislation, and we have participated in

litigation involving the construction of such legislation."

‘For example, we presented testimony to Congress during its

deliberations on, inter alia, the Civil Rights Attorney's Fees Awards

Act of 1976, 90 Stat. 2641, amending 42 U.S.C. § 1988.

In addition to numerous cases in the courta of appeals, we have

filed amicus briefs with this Court in Stanton v. Bond, 429 U.S.

973 (1976); Fitepatrick v. Bitzer, 427 U.S. 445 (1976); Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) ;

Bradley v. School Board of Richmond, 416 U.S. 696 (1974).

We thus offer our views on

Court: what standards should guide federal district

courts in the exercise of their discretion, under § 706

(k of Title VII of the Civil Rights Ac

grant or deny applications for attorneys’ fees by pre-

vailing defendants in cases :

ernment (here the EEOC)?

775

ordinarily entitles a prevailing private Title VII plain-

tiff to an award of attorneys’ fees should apply with

ment or by private plaintiffs. Our alarm at this proposi-

tion stems from our intense involvement in employment

discrimination litigation—through our privately- funded

claiming unlawful employment discrimination), through

our Equal Employment Project (which, pursuant to our

contract with the EEOC, provides representation to pri-

vate-sector plaintiffs), and through the general litiga-

tion activities of our Mississippi office and other local

affiliates. As we will show in the Argument section, our

experience is that the position advanced by petitioner,

if adopted by the Court, would effectively foreclose a

large amount of the most significant Title VII litigation,

including that being pursued by the Lawyers’ Committee,

thereby seriously frustrating national policies of the high-

est order.

Respondent EEOC’s brief is a persuasive and sufficient

discussion of the issues in this case in terms of

the structure, purpose and legislative history of Title

VII. We accordingly submit this short brief only to ad-

dress, from our perspective, two general aspects of the

it 1 (ete

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therefore be measured against the purposes which in-

form Title VII.“ d.

Consistent with the principles later discussed in Al-

bemarle Paper, the Court, in Newman v. Piggie Park

Enterprises, Inc., 390 US. 400 (1968), examined the

torney’s fee unless special circumstances would render

such an award unjust.” Id. at 402. The Newman ap-

proach certainly is applicable to this case, and faithful

application of that approach will lead to a determination

that ordinarily a prevailing Title VII defendant should

not recover attorneys’ fees. We show that a contrary re-

sult would (1) virtually nullify the private-enforcement

scheme of Title VII, and (2) be at odds with Congress’

uniform approach to attorneys’ fees legislation.

2. The Standard Petitioner Seeks Would Thwart the

Purpose of Title VII

At the time of the grant of certiorari in this case the

courts of appeals which had addressed the question were

unanimous in their conclusion that prevailing Title VII

defendants should not, as a matter of course, recover at-

torneys’ fees from losing plaintiffs." These courts rea-

"© Although Newman involved Title II's fee provision, f 204(b),

42 U.S.C. § 2000a-3(b), the language of that section is virtually

identical to § 706(k) and the Newman rationale is equally appli-

cable to Title VII. Albemarle Paper Co. v. Moody, supra, 422 US.

at 416; see aleo Northeross v Board of

U.S. 427 (197%).

—

soned that the fundamental purposes of Title VII required

that different considerations be taken into account in the

exercise of § 706(k) discretion in “prevailing defendant”

cases, and that such a defendant should recover attorneys’

fees from a losing plaintiff only when the plaintiff's liti-

gation conduct amounted to what we generically de-

scribe as “bad faith.” The reasons for this different

standard are obvious. These courts are unwilling to as-

sume that Congress, having provided for attorneys’ fees

as a means of enabling aggrieved parties to bring enforce-

ment suits, Newman v. Piggie Park Enterprises, Inc.,

supra, 390 U.S. at 401-02; Albemarle Paper Co. v.

Mvdafsupra, 422 U.S. at 415, simultaneously intended

to deter those aggrieved parties by making them face

the prospect of paying their opponents’ fees if the suit,

though brought in good faith, is unsuccessful. Such a rule

would deter not only the frivolous but the meritorious

suits as well.

To attribute to Congress the self-defeating motive in-

herent in petitioner’s argument would practically termin-

Container Corp,, 624 F.2d 1068, 1063-64 (8th Cir. 1975); United

States Steel Corp. v. United States, 619 F.2d 359 (8d Cir. 1975);

Van Hoomiasen v. Xerox Corp, 603 F.2d 1151 (9th Cir. 1974) (un-

published order of Nov. 6, 1974); FF v. MacMillan Bloedel

Containers, Inc., 603 F.2d 1086, 1096 (6th Cir. 1974). Since the

Court's grant of certiorari here, however, two courta of appeals’

decisions have held that prevailing defendants should recover fees

under the same standard as prevailing plaintiffs—i.c., ordinarily.

EEOC v. Bailey Co, Inc.. —— F 2d ~~, No. 76-1045 (6th Cir.

Sept. 20, 1977); United States v. Allegheny-Ludlum Induatrics,

Inc, 568 F.2d 742 (5th Cir. 1977). Both of these decisions rely

and its friends (see p. 5, supra). In addition, the court in HO.

V. Bailey Co, lune, like the petitioner here (ace Pet. Br. at 9),

argues that if the objective of Congress [in § 706(k)| had

yty -~ Gy yy: ] of attorneys’ fees against

a private plaintiff who acts in bad faith, then no new statutory

provision would have been necessary because the American rule

allows recovery in such cases even without a statute.” Slip Op.

at 32 0.10. This argument, too, is erroneous. See note 12, infra.

sters v. United States, —— U.S. —— (1977). The great

majority of these difficult factual and legal questions have

been presented and resolved in the context of ground-

breaking private litigation." Such litigation is essential

As evidenced by Congress’ grant of litigation authority to the

EEOC in 1972, as well as by the EEOC’s enormous backlog of com-

plaints, the congressional hope of 1964—that equal employment

opportunities would be attained through the administrative process

has not borne fruit. Hence, litigation is the primary hope for

fulfillment of Title VII's promises. That hope, in turn, rests to a

very large extent on suits initiated by private

review of the latest advance sheets will qu

—

to the public policies embodied in Title VII: “there is an

interest in having novel theories expounded and prior

holdings extended, all of which increases the possibility

that plaintiffs in a particular case may not prevail and

that their counsel may not be paid. We cannot over-

emphasize our conviction, confirmed by our experience in

representing the victims of employment discrimination,

that such important litigation will not be brought if this

Court holds that a prevailing Title VII defendant should

ordinarily recover attorneys’ fees from an unsuccessful

plaintiff. Faced with that prospect, most of our present

and former clients (who generally are economically dis-

advantaged), in our judgment, would have elected not

to seek judicial relief and run the very real risks of fur-

ther economic injury in the form of an award of fees

to the prevailing defendant. The prospect of such an

award, morever, would even chill the willingness to sue

of a plaintiff with an apparently strong case. Cf. Parker

v. Califano, —— F.2d ——, 14 EPD { 7637 at p. 5134

(D.C. Cir. June 30, 1977).”

The obvious practical impact of the proposition asserted

by petitioner, therefore, is so patently at variance with

800. It is not irrational to hypothesize that Robinson, and numerous

similar cases, would never have been filed if the plaintiffs had been

informed of a real possibility that the end of the long litigation road,

though travelled in good faith, would be an award requiring pay-

ment of the defendant's substantial litigation expenses and at-

torneys fees.

* United States v. Local Union No. „, Vor, 6 EPD 18946, at

p. 60384 (N. D. Calif. Nov. 9, 1973).

% Even the prospect of having to pay an opponent's court costs

can have a chilling effect on the pursuit of judicial relief, Jaspers v.

Bernstein, CA. No. 76-1411 (D.D.C. Sept. 19. 1977). Congress

on the employment rights of impecunious Title VII plaintiffs: in

addition to the attorneys’ fees authorization of § 706(k). the Act,

by § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1), also authorizes the

district courts to appoint attorneys for plaintiffs and to allow them

to proceed in forma pauperis.

in the original H.R. 1746.

in the manner contemplated by petitioner =

in the debate to fee awards is a statement

plaintiff”

ee SS See N

The House ultimately adopted the Erlenborn substitute, id.

in Accordance With the Standards Adopted in the

Judgment Below

The traditional American common-law rule, WIth cer-

3. Congress Has Consistently Intended Party.“ wen,

Attorneys’ Fees Authorizations To Be implemen

tain distinct and narrow equitable exceptions, Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240

15-19, infra, and accompanying text), the inference is strong that

Congress did not desire a different standard in Title VII cases.

(1975), has each party to a lawsuit bear his own at-

in connection with other legislative schemes and indicating its view

that such defendants should not ordinarily recover fees (see notes

difficult by Congress’ consistent approach

fees legislation.

now show that petitioner's burden is m

1415

wel

“the large objectives of the Act, Albemarle Paper Co.

v. Moody, supra, 422 U.S. at 416, that it cannot survive

measure] ment] against the purposes which inform Title

VII.“ Jd. at 417. In the absence of some unequivocal

statement to the contrary from Congress, and clearly

there is none, the Court ought not to dismantle Title VII

10 i

115

$33

e 8

2 3

II.

past

nificant national . See Meeker v. Lehigh Valley

R. R., 236 U.S. 412 (1915). This has true

in statutes which by their terms authorize fees

plaintiffs but also in statutes which are

tral,” as with Title VII. Congress has,

Thus, as Congress said in its Conference Report on the

Consumer Produet Safety Commission Improvements

Act, 15 U.S.C. 2073,“ in explaining why fees are to

be liberally awarded to plaintiffs but not to defendants: “

" § 2073 authorizes the district courts to award fees [iln any

action . in the interest of justice.

8. Rep. No. 94-251, 94th Cong. 2d Sess. 23 (1975).

However, in exceptional circum-

costs might be awarded to defendants where

“defend against unreasonable, frivolous,

or vexatious actions „ United States

. United States, 385 F. Supp. 346, 348

Where plaintiff's proceeding is

good faith or on the advice of competent

endant. Richardson v. Hotel Corporation

merica, F. Supp. 519 (E.D. La. 1971), aff'd

468 F.2d 951 (5th Cir. 1972).

In enacting the attorneys’ fees provision of the Marine

Protection Act, 33 U.S.C. § 1415(g) (4), which provides

for fees to “any party, whenever the court determines

such award is appropriate,” Congress said:

Furthermore, in issuing a final order in any such

suit the court may award certain costs of litigation

to any party when it concludes, in its discretion, that

such an award is appropriate (e.g., if the plaintiff

shows that the suit was meritorious, and not filed

for the sake of mere harassment). On the other

hand, if the court concludes that the purpose of the

suit was harassment, the court may award such costs

to the defendant.

And in the Water Pollution Control Act Amendments,

containing similar language, 33 U.S.C. § 1365(d), it was

explained that:

Concern was expressed that some lawyers would

211772

Hid

8. Rep. No. 92-451, 92d Cong. 2d Sess. (1971).

8. Rep. No. 92-414, 92d Cong. 2d Sess. 81 (1971).

should have the effect of discouraging abuse of this

provision, while at the same time encouraging the

quality of the actions that will be brought.

The Courts should recognize that in bringing legiti-

mate actions under this section citizens would be per-

forming a public service and in such instances, the

courts award costs of litigation to such party.

To the same effect are: the Clean Air Act (“any

party“), “ discussed in Delaware Citizens for Clean Air,

Inc. v. Stauffer Chemical Co., 62 F.R.D. 353 (D. Del.

1974); the Noise Pollution Control Act (“any party“), “

patterned after the Clean Air Act; the Voting Rights

Act Extension of 1975 (“prevailing party“) “; the Toxic

Substances Control Act (“in any action“) “; the Revenue

Sharing Amendments (“prevailing party“). *

Congress has recently and forcefully reaffirmed this

approach. In the first statute ever passed dealing solely

with attorneys’ fees, the Civil Rights Attorney’s Fees

Awards Act of 1976, 90 Stat. 2641, amending 42 U.S.C.

§ 1988, which uses the same “prevailing party” language

as § 706(k), Congress has presented the most detailed

legislative history to date on the purposes underlying at-

torneys’ fees authorizations in remedial statutory schemes.

This history is replete with explanations of the limited

1" 42 U.S.C. § 1857h-2(d).

42 U.S.C. § 4911(d).

See 8. REP. No. 92-1160, 92d Cong., 2d Sess. 8 (1972).

* 42 U.S.C. § 1973l(e). See 8. Rep. No. 94-295, 94th Cong., Ist

Sess. 40-41 (1975).

** 15 U.S.C. §§ 2618-20. See 122 Conc. Rec. $4416-17 (dailey ed.

March 26, 1976) (remarks of Senator Tunney).

81 U.S.C. §1244(e). See 122 Conc. Rec. 815726 (dailey ed.

Sept. 13, 1976) (remarks of Senator Brooke).

availability of fee awards to prevailing defendants.“ The

Report of the House Judiciary Committee explains why

the “prevailing party” language was used:

when the Justice Department testified in support of

H.R. 9552, the predecessor to H.R. 15460, it suggested

an amendment to allow recovery only to prevailing

plaintiffs. Assistant Attorney General Lee thought

the phrase “prevailing party” might have a “chilling

effect” on civil rights plaintiffs, discouraging them

from initiating law suits. The Committee was very

concerned with the potential impact such a phrase

might have on persons seeking to vindicate these im-

portant rights under Federal law. In light of existing

case law under similar provisions, however, the Com-

mittee concluded that the application of current

standards to this bill will significantly reduce the

potentially adverse affect on the victims of unlawful

conduct who seek to assert their federal claims.

28 While not dispositive, the legislative history of the 1976 Act

and the other statutes discussed above certainly is relevant to the

ascertainment of congressional intent with respect to the earlier-

passed Title VII fee provision. See genearlly Parker v. Califano,

supra, 14 EPD { 7637 at pp. 5137 & 5141 n.11, and authorities

there discussed; ef. New York State Dept. of Social Services v.

Dublino, 413 U.S. 405, 416 n.19 (1973). Moreover, as this Court

has noted in the specific context of civil rights attorneys’ fees

legislation, [the similarity of langauge . [between two fee

provisions passed at different times] is, of course, a strong indica-

tion that the two statutes should be interpreted pari passu.” North-

cross V. Board of Educ. of Memphis, 412 U.S. 427, 428 (1973).

Finally, a holding in this case inconsistent with the clear legislative

intent in the 1976 Act would have bizarre consequences, For ex-

ample, how would a district court decide a prevailing defendant's

motion for fees in a private-plaintiff employment discrimination

case brought pursuant to both Title VII and 42 U.S.C. § 1981

(see Johnson V. Railway Express Agency, Inc., 421 U.S. 454 (1975)),

if the Title VII standard were different from the one applicable

to § 1981 by virtue of the 1976 amendment to 42 U.S.C. § 19887

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 6 (1976).

Following a discussion of the standard used to award

fees to prevailing plaintiffs, citing Newman v. Piggie

Park Enterprises, Inc., supra, the report goes on:

te conte — 1 — —

awarding fees to p ling defendants because they

do r before the court cloaked in a mantle

of public interest.” United States Steel Corp. V.

United States, 519 F.2d 359, 364 (3rd Cir, 1975). As

noted earlier such litigants may, in proper circum-

stances, recover their counsel fees under H.R. 15460.

To avoid the potential “chilling effect” noted by the

Justice Department and to advance the public inter-

est articulated by the Supreme Court, however, the

courts have developed another test for awarding fees

to prevailing defendants. Under the case law, such

an award may be made only if the action is vexatious

and frivolous, or if the plaintiff has instituted it

solely to harass or embarrass” the defendant. United

States Steel Corp. v. United States, supra at 364. If

the plaintiff is “motivated by malice and vindictive-

ness,” then the court may award counsel fees to the

prevailing defendant. Carrion v. Yeshiva University,

535 F.2d 722 (2d Cir. 1976). Thus if the action is

not brought in bad faith, such fees should not be

allowed. See, Wright v. Stone Container Corp., 524

F.2d 1058 (8th Cir. 1975); see also Richardson v.

Hotel Corp of America, 382 F. Supp. 519 (E. D. La.

1971), aff'd without published 468 F.24 951

(Sth Cir, 1972). This standard will not deter plain-

tiffs from seeking relief under these statutes, and yet

will prevent their being used for clearly unwarranted

harassment purposes.

The Senate Judiciary Committee Report is also un-

equivocal and persuasive: “

d. at 7.

% g. Rer. No. 94-1011, 94th Cong., 2d Seas. 4-5 (1976) (footnote

omitted). See also 122 Conc. Rec. 816280 (remarks of Sen.

Bumpers) (daily ed. Sept. 21, 1976); id. at 816431 (exchange be-

It is intended that the standards for awarding fees

be generally the same as under the fee provisions of

the 1964 Civil Rights Act. A party seeking to en-

force the rights protected by the statutes covered by

S. 2278, if successful, “should ordinarily recover an

attorney’s fee unless special circumstances would

render such an award unjust.” Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400, 402 (1968).

Such “private attorneys general” should not be de-

terred from bringing good faith actions to vindicate

the fundamental rights here involved by the prospect

of having to pay their t’s counsel fees should

they lose. Richardson v. Hotel Corporation of Amer-

ica, 332 F. Supp. 519 (E.D. La. 1971), aff'd, 468

F.2d 951 (5th Cir. 1972). (A fee award to a de-

fendant’s employer, was held unjustified where a

claim of racial discrimination, though meritless, was

made in good faith.) Such a party, if unsuccessful,

could be assessed his opponent’s fee only where it is

shown that his suit was clearly frivolous, vexatious,

or brought for harassment purposes. United States

Steel Corp. v. United States, 385 F. Supp. 346 (W. D.

Pa. 1974), aff'd, 9 E.P.D. J 10,225 (8d Cir. 1975).

This bill thus deters frivolous suits by authorizing

an award of attorneys’ fees against a party shown

to have litigated in “bad faith” under the guise of

attempting to enforce the Federal rights created by

the statutes listed in S. 2278. Similar standards have

been followed not only in the Civil Rights Act of

1964, but in other statutes providing for attorneys’

fees. E.g., the Water Pollution Control Act, 1972

U.S. Code Cong Adm. News, 3747; the Marine

Protection Act, Id. at 4249-50; and the Clean Air

tween Sens. Abourezk and Hathaway) (daily ed. . 1976) ;

id. at 516491 (Sen. Tunney) (daily ed. Sept. on sete td. 4

$17060-51 (Sens. Tunney and Kennedy) (daily ed. Sept. 29, 1976) ;

id. at 1112156 (Rep. Bauman), H12159-60 (Rep. Drinan), 12162

— 5 Kastenmeier), H12165-66 (Rep. Seiberling) (daily ed. Oct. 1,

Act, Senate Report No. 91-1196, 91st 2d Sess.,

p. 483 (1970). See also Hutchinson v. W

Inc., 50 P. 292, 298 (D. Mass, 1943) (Fair

In short, while the standards by which fees are awarded

to plaintiffs have varied, Congress appears to have fol-

lowed a uniform rule for defendants: awards of fees

are available only in exceptional circumstances, if at all.“

Against this background, it is not plausible to suppose that

when Congress passed the monumental Civil Rights Act of

1964, it intended—silently to discard the American rule

and give defendants in employment discrimination cases

an unprecedented weapon which would defeat the legis-

lative will so laboriously debated and enacted.

— —ͤũ A tt

CONCLUSION

The judgment below should be affirmed.

October 1, 1977.

Respectfully submitted,