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To the winner goes … the loser’s legal bill

You may have to pay worker's attorney fees even when you win

by on
in Hiring,Human Resources

Houston police officer David Garcia was denied a transfer to the city's SWAT team even though his evaluations ranked higher than three of the four officers selected.

One reason Garcia wasn't picked was his lack of front-line and tactical experience. His 10 years of community policing consisted mainly of giving presentations to civic groups and schools.

But a jury said the police department also illegally considered Garcia's race and national origin in its decision. Although the jury found that the city would have made the same decision even if it had not considered Garcia's race, that didn't get it off the hook.

Houston won the case and didn't have to pay any damages, but it was still ordered to pay Garcia's attorney fees and court costs totaling more than $18,000.

Why? The city used a "mixed motive" defense, saying that even though it discriminated, the discrimination didn't affect the outcome of the hiring decision. But Title VII says that in mixed-motive cases, a court may grant attorney fees to the worker even if the employer wins the case.

Most circuits leave it to the district court's discretion whether the employer has to pay workers' attorney fees in mixed-motive cases. (Garcia v. City of Houston, No. 98-20943, 5th Cir., 2000)

Advice: It's not enough to reach the right decision. How you get there is important. Don't grow complacent thinking that just because discrimination didn't change your decision, you'll be off the hook. This case highlights the importance of having hiring and promotion procedures that eradicate any bias or favoritism. Once a worker proves that discrimination played a role, no matter how small the role, you can be forced to pay for his lawyer.

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