Academic journal article Journal of Legal, Ethical and Regulatory Issues

Frivolous Employment Discrimination Litigation: Myth or Reality?

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Frivolous Employment Discrimination Litigation: Myth or Reality?

Article excerpt


Numerous reports in the popular press have alluded to a rise in the number of frivolous lawsuits being filed in the United States. Employers have lamented for years that the majority of employment discrimination lawsuits have also been frivolous. If these assertions are true, frivolous litigation could be responsible for numerous negative consequences for our legal system and economy.

The purpose of this paper is to assess the nature of frivolous litigation and to assess to what extent it is in fact a problem in the context of employment discrimination litigation. The paper focuses on Title VII of the 1964 Civil Rights Act and Americans with Disabilities Act (ADA) court decisions where allegations of frivolous litigation have been raised.


Numerous recent reports in the popular press allude to a rise in the number of frivolous lawsuits being filed in the United States and the impact on our judicial system and economy (Abraham, 1998; Winston, 1999; Shapiro, 1999; Chain Store Age, 2000; Hayes, 2001). Quotes like, "We have a legal system today that allows a sort of extortion to exist", and "All too often, terminated employees will retaliate against their former employers by bringing frivolous discrimination lawsuits" are plentiful (Shapiro, 1999; Myers, 1997).

The negative results of frivolous suits are alleged to be numerous. They are reportedly clogging our court systems and lead to judicial delay and high court costs. In addition there are allegations of negative effects on our economy. Groups like Michigan Lawsuit Abuse Watch list negative economic side effects that include the increased cost of Girl Scout cookies and little league baseball insurance, and job-loss in states where expanded liability has decreased productivity and job creation (

The purpose of this paper is to assess to what extent frivolous litigation is in fact a problem in the context of employment discrimination litigation. The paper focuses on Title VII and ADA court decisions where allegations of frivolous litigation have been raised.


At the same time the popular press has been raising the volume of the debate on the issue, scholarly publications paint somewhat of a different picture of the situation. Robert G. Bone concluded in his 1997 University of Pennsylvania Law Review article, "We know remarkably little about frivolous litigation. Reliable empirical data is extremely limited, and casual anecdotal evidence highly unreliable"(Bone, 1997). Chris Guthrie, citing the work of Herbert M. Kritzer, noted "the frivolous case debate is sustained primarily through anecdotes" and "there is no evidence of large numbers of frivolous cases involving plaintiffs who sue solely to extort a settlement up to the amount of defendants costs of responding"(Guthrie, 2000).

Bone attributes the lack of empirical work on frivolous litigation to a number of reasons.

   One obstacle is the lack of a clear and generally accepted
   definition of a "frivolous suit". Another is the tricky problem of
   how to determine whether any given suit is frivolous. This problem
   is particularly acute because the most obvious source of
   information--judicial determinations of frivolousness--is not
   likely to represent the case population as a whole, and especially
   not cases that end in settlement. Finally, researchers cannot
   easily obtain settlement data because parties often keep
   settlements confidential, making it very difficult to test ... one
   of the most serious effects of litigation: the adverse impact on
   settlement of legitimate suits (Bone, 1997).

While there is little empirical support for the existence of a plethora of frivolous lawsuits, the perception that it is a problem is wide spread. John Lande's survey of business lawyers and executives in 1998 reported that 53 percent of inside counsel and 14 percent of outside counsel in his survey believed that more than half of the law suits filed against businesses are frivolous (Lande, 1998). Valerie P. Hans and William S. Lofquist in a 1992 survey of jurors found that 83 percent of jurors in cases involving business defendants either "agree" or "strongly agree" that there are far too many frivolous lawsuits (Hans & Lofquist, 1992).

One of the factors that have helped create this perception is the 1991 Amendments to Title VII of the 1964 Civil Rights Act authorizing compensatory and punitive damages in cases of intentional discrimination. It is well documented in the literature that the number of lawsuits filed in federal courts and complaints filed with administrative agencies increased dramatically in the 1990s. Provisions in the 1991 amendments to Title VII of the 1964 Civil Rights Act authorizing compensatory and punitive damages in cases of intentional discrimination have been identified in the literature as the key force driving the rise in litigation (Armour, 2001; Walker & Lowe, 2001). Prior to the 1991 amendments, monetary remedies under Title VII were limited to back pay awards. The 1991 law also extended the damage provisions to the Americans with Disabilities Act.


The general rule in the United States with respect to attorney's fees is that in the absence of specific legislation providing otherwise, the litigants must pay their own fees and costs. This is known as the American rule. Congress has provided exceptions to this rule. Section 706 (k) of Title VII of the 1964 Civil Rights Act and Section 505 of the Americans with Disabilities Act authorize a district court in its discretion to allow the prevailing party a reasonable attorney's fee. When the prevailing party is the defendant, the fees can only be awarded to the defendant when the court in the exercise of its discretion has found that the plaintiff's action was frivolous, unreasonable, or without foundation. The U.S. Supreme Court clarified the standard to be used in awarding attorney's fees to prevailing defendants in its Christiansburg Garment Co. v. EEOC decision and, it is generally agreed that the standard for prevailing defendants is different from prevailing plaintiffs (Christiansburg Garment Co. v. EEOC, 1978). In determining if a case is frivolous, "courts look at whether the case was so lacking in merit that it was groundless rather than whether the claim was ultimately unsuccessful" (Watkins, 1998).

While the Supreme Court points to the "sparse legislative history of 706 (k)" the legislative debates that the court does reference make it clear that congress's intention was to "make it easier for a plaintiff of limited means to bring a meritorious suit". The court also points out that congress wanted to include a deterrent to the bringing of lawsuits without foundation.

   "[From these debates] two purposes for 706 (k) emerge. First,
   Congress desired to make it easier for a plaintiff of limited means
   to bring a meritorious suit'.... But second, and equally important,
   Congress intended to deter the bringing of lawsuits without
   foundation by providing that the prevailing party--be it plaintiff
   or defendant--could obtain legal fees

   (Grubbs v. Butz, 1976).

The Supreme Court in Christiansburg Garment v. EEOC also clarified the words utilized by the Second and Third Circuit Court of Appeals in earlier cases dealing with the awarding of attorneys fees to defendants in Title VII cases. In the Third Circuit case, United States Steel Corp. v. United States, the court denied a fee award to a defendant that had successfully resisted a Commission demand for documents. The court found that the Commission's action had not been "unfounded, meritless, frivolous or vexatiously brought"(United States Steel Corp. v. United States, 1975).

The Supreme Court went further in it's Christiansburg Garment decision in clarifying how district courts should apply the criteria.

   It is important that a district court resist the understandable
   temptation to engage in post hoc reasoning by concluding that,
   because a plaintiff did not ultimately prevail, his action must
   have been unreasonable or without foundation. This kind of
   hindsight logic could discourage all but the most airtight claims,
   for seldom can a prospective plaintiff be sure of ultimate success.
   No matter how honest one's belief that he has been the victim of
   discrimination, no matter how meritorious one's claim may appear at
   the outset, the course of litigation is rarely predictable.
   Decisive facts may not emerge until discovery or trial. The law may
   change or clarify in the midst of litigation. Even when the law or
   the facts appear questionable or unfavorable at the outset, a party
   may have an entirely reasonable ground for bringing suit

   (Christiansburg Garment Co. v. EEOC, 1978).

Subsequent cases where employers have been successful in recovering attorney fees under the criteria established in the Christiansburg Garment Co. decision include Arnold v. Burger King Corp., and (4th Cir. 1983) and Hormel Foods, 2001. In Arnold v. Burger King Corp., the 4th Circuit Court of Appeals concluded that the plaintiff, in this case a black male discharged for persistent harassment of female employees, had brought suit solely to vindicate himself in the eyes of his wife and family. The court cited the fact that a white employee involved in less severe incidents of sexual misconduct than the plaintiff had been discharged previously--a fact known to the plaintiff, and there was no other evidence of past dealings between the plaintiff and defendant that involved racial animus (Arnold v. Burger King Corp., 1983). In Bugg, the defendant was awarded attorney's fees from the district court's dismissal of the plaintiff's claims because the plaintiff had been warned by their court appointed legal counsel that the case was wholly lacking in merit (Bugg v. International Union of Allied Industrial Workers, 1982). In Hormel Foods, the court awarded $20,000 in fees to the defendant citing the fact that the employee and counsel had completely disregarded "recent Supreme Court interpretations of 'disability' when [an employee] uses corrective measures to mitigate an impairment". The employee failed to oppose Hormel's request to dismiss the suit and continued to pursue the claim even after becoming aware that the claim was frivolous, unreasonable and/or groundless (Jensen, Sam et. al., 2001).

While the Arnold, Bugg, and Hormel Foods cases are clear examples of what the Supreme Court had in mind in its Christiansburg Garment decision, numerous other cases where district courts have awarded fees to prevailing defendants have not survived appeal. For example, in EEOC v. L.B. Foster Co., the court reiterated Christiansburg Garment with respect to a district court's temptation to engage in "post hoc reasoning" simply because the plaintiff did not prevail.

The 3rd circuit also noted further that several courts of appeals have reversed fee awards to prevailing defendants in lawsuits brought by the EEOC where these guiding principles have been misapplied (See for example, EEOC v. Bruno's Restaurant, 13 F. 3d 285 9th Cir. 1993; EEOC v. Reichhold Chems., Inc., 988 F. 2d 1564, 11th Cir. 1993; & EEOC v. Kenneth Balk & Assocs., Inc., 813 F. 2d 197, 8th Cir. 1987). The 3rd Circuit decision in EEOC v. L.B. Foster goes on to further point out that

   "cases where findings of frivolity have been sustained typically
   have been decided in the defendant's favor on a motion for summary
   judgment or a.... motion for involuntary dismissal. In these cases,
   the plaintiffs did not introduce any evidence to support their

   (EEOC v. L.B. Foster Company, 1997).

Two other issues that have been raised with respect to the ability of defendants to recover attorney fees include whether the plaintiff chose to represent themselves and the financial status of the plaintiff. In McNary v. Clarksdale Public Schools, the plaintiff represented himself in litigation where he claimed that the school system discriminated against him in terminating him after he had been arrested for rape. He claimed that he was discharged as a result of being accused of a sex crime by a female and thus was discriminated against because he is male. His suit was dismissed by the district court and the 5th Circuit Court of Appeals. In denying the school system's request for attorneys' fees the district court noted that "an unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claim" (McNary v. Clarksdale Public Schools, 1998). In Alizadeh v. Safeway Stores Inc., a district court award of $33,750 in attorney's fees to the defendant was vacated and remanded for reconsideration by the 5th Circuit Court of Appeals based on the plaintiff's limited financial resources and ability to pay (Alizadeh v. Safeway Stores Inc., 1990). The 2nd Circuit Court of Appeals reached a similar conclusion in a 1979 case and concluded that "the court below should have ascertained whether, in light of the plaintiff's ability to pay, a lesser sum assessed would have fulfilled the statute's deterrent purpose without subjecting him to financial ruin" (Faraci v. Hickey-Freeman Co., 1979).


The January 2000 special report by the Bureau of Justice Statistics contained some staggering statistics with respect to lawsuits alleging employment discrimination. The total number of suits filed between 1990 and 1998 involving discrimination in employment, housing, welfare, voting, or other civil rights issues more than doubled from 18,793 to 42,354 and the report concluded that the increase was due largely to the increase in employment cases between private parties (Litras, 2000). Over the same time period, there was also a corresponding increase in the number of cases filed in the U.S. courts of appeal (4,729 in 1990 to 8,466 in 1998) with over half of the increase due to the rise in civil rights appeals dealing with employment matters (Litras, 2000).

The disposition of these suits has also fluctuated. For example, the percentage of suits dismissed has risen from 65.6% in 1990 to 70.9% in 1998. Another interesting trend is the number of cases that are disposed of via a trial. In 1990, 7.8% of all civil rights complaints went to trial with that percentage steadily declining over the period to 4.8% in 1998 (Litras, 2000).

Title VII and ADA complaints filed with the EEOC rose and then stabilized from 1992 through 2001. (See Table 1)

Merit resolutions of those charges also fluctuated over the period, rising early in the period, then declining through 1996 and then steadily rising again through FY 2001 (See Table 2)

While the 1991 amendments to Title VII are cited by most as the primary force stimulating the increases in complaints and lawsuits, a variety of other causes have been mentioned. Included among the rationale for the increases are the assertion that backlash to political correctness and diversity initiatives have heightened sensitivity to these issues and more assertiveness on the part of minorities (Jonsson, 2000). Some critics lament that the increase in cases is not "necessarily about justice" but that the legislation has made it "too risky for companies who deny charges to let cases go to court. Instead, they must agree to large settlements for fear they will have to pay even more if the lawsuit goes before a jury". The potential large damage awards and the propensity to settle fuels the logic that employers have become "vulnerable targets" (Armour, 2001).

A criticism of the ADA going back to its passage is the ambiguity of the act (Robinson, 1992). U.S. Supreme Court Justice Sandra Day O'Connor reiterated this criticism in a recent address to a group of attorneys where she blamed Congress for recent rulings by the Supreme Court limiting the ADA.

   The sponsors of the ADA were "so eager to get something passed,"
   they didn't draft the law with proper attention to detail. As a
   result, O'Connor continued, "the legislative intent is unclear"

   (Utah Employment Law Letter (1), 2002).

Other assertions range from placing blame on our "lawyer-driven society" driving more and more people to "go for the money" to the notion that "America is the kind of country that, when we see a wrong, we try to make it right, and we'll even try to change a culture, like they did in the South" (Jonsson, 2000).

Critics have also targeted the EEOC over the years as part of the fuel driving the litigation nightmares that many employers claim to endure. Yet looking at the EEOC statistics in Table 3, one could easily conclude that the EEOC has acted as a litigation filter to meritless cases. More than half the charges filed with the EEOC have been found to be without merit by the agency.

For Title VII complaints, throughout the period the EEOC regularly resolved complaints with a finding of no reasonable cause. While this in itself is not a bar to the complainant filing a lawsuit, it could have a deterrent effect on plaintiffs. Whether or not this is accurate is an area for further research in this respect. Yet, the EEOC does act as a screening device and opportunity to settle an employee's complaint before it ends in litigation. Referring to Table 2, with the exception of 1996, the percentage of merit resolutions has been increasing steadily for both Title VII and ADA complaints over the period. At the same time, EEOC litigation activity has remained relatively stable. Table 4 contains EEOC litigation statistics for FY 1992 through FY 2001. It shows that direct suits that the EEOC files against an employer alleging a claim of employment discrimination, are a relatively small part of the actual litigation pie.


In recent years there have been indications that judges are cracking down on plaintiffs and attorneys that pursue frivolous lawsuits. The September 28, 2001 edition of the Broward Daily Business Review detailed a series of cases where sanctions were recommended or ordered against plaintiffs and or their attorneys in employment discrimination lawsuits. In a case involving Ocean Spray and one of Broward County's largest law firms, one of the firms partners could face up to $700,000 in sanctions related to what a federal magistrate found to be a frivolous claim of racial discrimination (Kay, 2001). In this case, U.S. Magistrate Barry Garber in his report responding to defendant's attorneys request for sanctions, accused the plaintiffs' lawyer of making "unsubstantiated allegations". The magistrate found after questioning several of the plaintiffs, "that they were not terminated or denied promotion because of their race, and indicated that they were not subject to racial epithets in the workplace."

   ... the Plaintiffs' pleadings are replete with factual
   inaccuracies, most of which were not corrected even after they were
   pointed out to plaintiffs' counsel by the defense. The court cannot
   and will not turn its back on the outrageous and highly
   unprofessional conduct of plaintiffs' counsel in this case (Kay,

In another Broward County case, described as "the latest is a series of sanctions recommended or ordered against plaintiff lawyers in employment lawsuits", a federal magistrate judge approved $600,000 in sanctions against a Fort Lauderdale labor and employment attorney (Kay, 2001).

In a New Jersey case, New Jersey Lawyer reported on an attorney's "Rambo" tactics which, unreasonably and vexatiously multiplied the proceedings" in a reverse-discrimination case. The court assessed $56,885 in attorney's fees and $2,330.60 in cost against the plaintiff's attorney (Liskow, 2001).

While some courts have been cracking down on frivolous litigation recently, one recent U.S. Supreme Court decision reinforced the low threshold necessary for plaintiffs to survive an employers request to dismiss a case without a trial (Swierkiewicz v. Sorema N.A., 2002). Swierkiewicz, a 53-year old native of Hungary, was fired after having been given a choice by his company of resigning or being dismissed. He sued his company for discrimination based on age and national origin. His case was dismissed by the lower court using a Supreme Court standard known as the "prima facie case" which requires an employee to have a certain amount of evidence to support his discrimination claim. Some other courts had been employing a lower standard, requiring that an employee state only basic facts and allegations in their initial complaint and requiring additional facts and evidence to be gathered through other pretrial fact-finding processes. The Supreme Court adopted the lower standard for employees' pleadings in discrimination cases thus making it more difficult to get cases dismissed early in the process (Utah Employment Law Letter, 2002).


The EEOC has acted as a filter eliminating many frivolous claims before they go to court. While it is impossible to screen out all obviously frivolous cases,--"like that of the professor fired for sexual harassment who blamed his behavior on a sexual addiction", courts will generally dismiss these cases early in the process (Shapiro, 1999). Employers who feel that they are the victims of frivolous employment discrimination lawsuits have a remedy at their disposal. Section 706 (k) of title VII of the 1964 Civil Rights Act and Section 505 of the Americans with Disabilities Act authorize a district court in its discretion to allow the prevailing defendant to recover attorney fees when the action brought is found to be frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith (Christiansburg Garment Co. v. EEOC, 1978). However employers have a heavy burden to carry in order to succeed in recovering fees under 706 (k) or 505. As a result, disgruntled employees and unscrupulous lawyers can exploit the threat of litigation over employers. This will certainly not promote efficient and effective management of the firm's human resources in the long run and may be counter-productive with respect to efforts to promote diversity (Armour, 2001).

The determination of situations where employers can recover is made on a case-by-case basis at the district court level and subject to the usual review processes. Cases where employers have succeeded in their claims of frivolity "have been decided in defendant's favor on a motion for summary judgment or a.... motion for involuntary dismissal. In these cases, the plaintiffs did not introduce any evidence to support their claims" (EEOC v. L.B. Foster Company, 1997).

While the U.S. Supreme Court recently made it more difficult to get employee suits dismissed early in the process, the court and the EEOC may have provided employers with some relief. In Buckhannon Board and Care Home v. West Virginia Department of Health and Human Services, the court limited the ability of plaintiffs to recover attorney's fees when an alleged violation of the ADA was resolved before a trial verdict. Restaurant News claims that this decision "offers hope to restaurateurs who claim that opportunistic lawyers have turned frivolous ADA lawsuits into a cottage industry" (Hayes, 2001). The court's decision limits the awarding of attorneys fees where the plaintiff has failed to secure a judgment on the case's merits or a courtordered consent decree but has achieved the desired result through a voluntary change in the employer's conduct (Buckhannon board and Care Home, Inc., et al. v. West Virginia Department of Health and Human Resources et al., 2001). EEOC chairperson Cari Dominguez recently announced that the EEOC wants to focus on preventing workplace discrimination and "filing lawsuits is not the first line of defense at EEOC--it is a last resort" (Chen, 2001). Chairperson Dominguez also reiterated the EEOC's commitment to the use of mediation, settlement and conciliation as opposed to litigation as a means of resolving allegations of discrimination.


Employers that pursue consistent fair and pro-active human resource practices, have competent and experienced legal council, and who conclude that their challenged actions or decisions are consistent with the law, may want to pursue 706 (k) or 505 actions.

As to the question of whether frivolous employment discrimination litigation is a myth or reality, the evidence would seem to indicate that it is a myth. The lack of empirical support for claims by employers, the large number of cases screened by the EEOC and consistently deemed to be without merit, and the harshness of remedies that courts have imposed on plaintiffs' cases that have been deemed frivolous would seem to support that conclusion.


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Arnold V. Burger King Corp, 1983. United States Court of Appeals for the Fourth Circuit, 719, F. 2d, 63.

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Buckhannon Board and Care Home, Inc. et al. v. West Virginia Department of Health and Human Services et al., 2001. United States Supreme Court, 532 U.S. No.99-1848.

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Gerald E. Calvasina, Southern Utah University

Richard V. Calvasina, University of West Florida

Eugene J. Calvasina, Southern University

Table 1 Title VII and ADA Charges FY 1992-FY 2001

                FY       FY       FY       FY       FY

               1992     1993     1994     1995     1996

Title VII
Receipts      55,391   62,811   61,105   62,159   55,388
Resolutions   47,014   46,176   43,833   54,464   60,944


Receipts       1,048   15,274   18,859   19,798   18,046
Resolutions       88    4,502   12,523   18,900   23,451

                FY       FY       FY       FY       FY

               1997     1998     1999     2000     2001

Title VII
Receipts      58,615   58,124   57,582   59,588   59,631
Resolutions   62,533   60,888   59,085   57,136   54,549


Receipts      18,108   17,806   17,007   15,864   16,470
Resolutions   24,200   23,324   22,152   20,475   19,084

Source: EEOC--

Table 2 Title VII and ADA Merit Resolutions of Charges (1) FY 1992-FY

                               FY      FY      FY      FY      FY

                               1992    1993    1994    1995    1996

Title VII                     7,400   7,156   6,580   6,051   5,126
Percent of Charges Resolved    15.7    15.5    15.0    11.1     8.4
ADA(2)                           19   1,119   2,219   2,507   2,512
Percent of Charges Resolved    21.6    24.9    17.7    13.3    10.7

                               FY      FY      FY       FY       FY

                              1997    1998    1999     2000     2001

Title VII                     6,397   6,982   9,206   11,875   11,708
Percent of Charges Resolved    10.2    11.5    15.6     20.8     21.5
ADA(2)                        2,948   3,405   3,965    4,835    5,090
Percent of Charges Resolved    12.2    14.7    17.9     23.6     26.7

(1) Merit Resolutions are defined by the EEOC as charges with outcomes
favorable to charging parties and/or charges with meritorious
allegations. These include negotiated settlements, withdrawals with
benefits, successful conciliations, and unsuccessful conciliations.

(2) The EEOC began enforcing Title I of the ADA on July 26, 1992 and FY
1993 represents the first full year the EEOC enforced Title I of the

Source: EEOC--

Table 3
Resolution of Cases by type No Reasonable Cause (1) FY1992-FY 2001

              FY     FY     FY     FY     FY

             1992   1993   1994   1995   1996

Title VII
Percent of   61.6   57.5   50.8   53.2   62.9
Charges No

Percent of    8.0   32.0   37.8   44.4   55.5
Charges No

              FY     FY     FY     FY     FY

             1997   1998   1999   2000   2001

Title VII
Percent of   61.9   62.1   60.3   59.2   58.8
Charges No

Percent of   57.5   57.7   57.6   55.8   54.1
Charges No

(1) No Reasonable Cause--EEOC's determination of no reasonable cause to
believe that discrimination occurred based upon evidence obtained in
investigation. The charging party may exercise the right to bring
private court action.

Source: EEOC--

Table 4
EEOC Litigation Statistics FY 1992-FY 2001 Direct Suits

             FY     FY     FY     FY     FY

            1992   1993   1994   1995   1996

Title VII    242    260    235    193    106
ADA                   3     34     81     38

             FY     FY     FY     FY     FY

            1997   1998   1999   2000   2001

Title VII    175    229    324    223    271
ADA           80     79     54     24     62

Source: EEOC--
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