When an employer discriminates, but would have made the same decision even if no discrimination occurred, it may think it can escape liability. That’s not entirely true.
Courts may still award attorneys’ fees to the employee’s lawyer. And those fees may be far more than any damages the employee might have received under a discrimination claim.
Recent case: Even though she was highly qualified, Mary Wolfe was passed over for several promotions at the Texas Health and Human Services Commission, which was undergoing a reorganization.
She suspected sex discrimination. The smoking gun was an alleged comment by one of the decision-makers that he filled three of the four top slots with men because it would give the department more prestige.
Wolfe sued for discrimination.
The commission presented evidence that, because of reasons having nothing to do with discrimination, it wouldn’t have hired Wolfe for any of the positions. Nonetheless, a jury concluded that Wolfe had been discriminated against because of her sex (because the commission generally favored men for top spots), but that she wouldn’t have been selected regardless. Thus, she got no money because she wouldn’t have been promoted even without discrimination.
However, the court ordered the commission to prevent future discrimination—and ordered it to pay Wolfe’s attorneys’ fees since she had proven sex discrimination. (Texas Health and Human Services Commission v. Wolfe, No. 03-08-00413, Court of Appeals of Texas, 2010)