Benchslapped! EEOC & NLRB May Have to Pull Out Their Debit Cards

For those employment lawyers who believe that the EEOC and NLRB have tended to overreach of late (i.e., the defense bar), two separate decisions handed down against those agencies caused a distinct feeling of schadenfreude.¹

Or, as one legal scholar noted in a somewhat different context, “Hey! Gotta gotta pay back!! (The big payback).”

On Thursday, the Supremes ruled (8-0) that the EEOC may be ordered to pay an employer’s attorneys’ fees under Title VII when the agency’s lawsuit is dismissed because it failed to satisfy its pre-suit requirements. The ruling in CRST Van Expedited, Inc. v. EEOC reversed the 8th Circuit’s decision that a ruling on the merits of the underlying discrimination claim is required for an employer to be deemed a “prevailing party” that can seek its fees. It sets up a remand to the 8th Circuit in which CRST Van Expedited, Inc. is expected to seek approximately (gulp) $4.5 million in legal fees.

Separately, the U.S. District Court for the Northern District of Alabama ruled that two defendants are entitled to $46,015 in fees incurred in resisting an NLRB petition for injunctive relief, concluding, “No reasonable person, with knowledge of the facts and the law of this Circuit, would find the Director’s position was substantially justified.” (The opinion in Harrell v. Ridgewood Health Care Center Inc. is here, through Bloomberg – subscription required.)

All in all, a pretty terrible day for the feds, the kind that makes your bladder splatter and your liver quiver.

¹Gentle reader, your humble correspondent almost linked to the urbandictionary.com definition of this term before realizing that this blog’s editors would shoot it down in a New York second. You are invited to peruse said entry on your own nickel.