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The United States District Court for the District of Maryland recently ordered the EEOC to ante up and pay nearly $1 million in attorneys’ fees for pursuing meritless claims against Freeman, an events planning company. The judge took EEOC to task for failing to realize that it was holding a lousy hand:
World-renowned poker expert Kenny Rogers once sagely advised, “You’ve got to to know when to hold ‘em. Know when to fold ‘em. Know when to walk away.” In the Title VII context, the plaintiff who wishes to avoid paying a defendant’s attorneys’ fees must fold ‘em once its case becomes so groundless that continuing to litigate is unreasonable, i.e. once it is clear it cannot have a winning hand. In this case, once Defendant Freeman revealed the inexplicably shoddy work of the EEOC’s expert witness in its motion to exclude that expert, it was obvious Freeman held a royal flush, while the EEOC held nothing. Yet, instead of folding, the EEOC went all in and defended its expert through extensive briefing in this Court and on appeal. Like the unwise gambler, it did so at its peril. Because the EEOC insisted on playing a hand it could not win, it is liable for Freeman’s reasonable attorneys’ fees.
Unfortunately, this decision is not surprising for two reasons. First, the EEOC was already busted twice on the merits of this case, the District Court noting, “The story of [this case] has been that of a theory in search of facts to support it.” Second, as the Chamber has extensively documented in its 2014 report, the EEOC has a bad habit of pursuing questionable enforcement tactics against employers.
Given the criticism that EEOC received in this case, one has to wonder how the litigation got as far as it did. Because while Freeman has recouped at least some its costs, remember that the EEOC will pay this fee award using taxpayer dollars. Indeed, this case is further reminder that Congress needs to call EEOC’s bluff and pass the Litigation Oversight Act of 2015 (H.R. 549), and the EEOC Transparency and Accountability Act (H.R. 550). These two Chamber-backed bills will institute common sense safeguards at the EEOC by returning some litigation authority from the General Counsel and regional attorneys to where it belongs: with the five commissioners who have been nominated by the President and confirmed by the Senate. If these bills become law, EEOC will have to make sure it actually has a winning hand before it goes all in against an employer.