Civil rights law such as the ADA usually include a provision requiring the Agency to pay attorneys’ fees for successful claims. This means that if there is a final determination that the agency has discriminated against an employee, the employee can normally request for payment of the fees his attorney has incurred in bringing the claim.

There are many cases where employees were awarded attorneys’ fees by the EEOC after winning their claims. Here are two decisions with a discussion of the purpose of the provisions under the law.

• Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035 (2003)(federal employee awarded attorneys’ fees for disability claim)
• Vindiola v. United States Postal Service, EEOC Appeal No. 07A20046 (2003)(federal employee awarded 27,000 in attorneys’ fees after being fired)

Why is this important? In most kinds of lawsuits, each side pays for its own attorneys whether they win or lose. In the average traffic injury case, the attorney is paid a percentage of what the jury awards, and that is constitutes her fee.

Civil Rights, such as protecting individuals from discrimination, are different from other kinds of cases. In this context, there are “fee-shifting” provisions in the law. ‘Shifting’ in this context refers to ‘shifting the burden’ of paying for an attorney from the employee to the defendant employer. It is important for federal employees to understand how these provisions work before hiring an attorney to represent them.

Civil Rights Cases are Important Enough to Ensure that Federal Employees are Made Whole for the Agency’s Discrimination

We as a society have chosen to ensure that an employee can bring a discrimination claim without fearing that he will end up losing even if he wins. The point is that the employee who brings a claim cannot be “made whole” if he has to pay attorneys’ fees. That is, he cannot be put in the same situation as would have existed if there were no discrimination if he bears the cost of doing so. Forcing an employee to pay for an attorney to right the wrong of discrimination puts the burden of social justice on the person whose rights were violated.

For the individual employee, the point of bringing a claim of discrimination is to stop a wrong and make the situation right again. This means that the employee should be paid wages that he was not able to earn because of the discrimination, and should be compensated for the emotional harms that the discrimination caused. But because there are important civil rights issues at stake, the employee should not have to bear the cost of helping to end discrimination for all of us.

Attorneys’ Fees Encourage Federal Employees to Bring Claims Regardless of the Amount of Money at Stake

Another reason attorneys’ fees are important is that it makes sure that employees bring ADA and civil rights cases even if the issue does not involve a lot of money. We as a society have decided that discrimination, even in small amounts, is still bad, regardless of the dollar cost of that discrimination.

In the ADA context, many employees are discriminated against when they are not given full accommodations as required by the law. Beyond being ungenerous and demeaning, failing to provide a reasonable accommodation impacts the employee’s ability to perform his or her job efficiently. Over the years, the employee may miss out on promotional opportunities, training opportunities, and other benefits that he or she would otherwise enjoy. This is to say nothing of the indignity of an ungenerous agency refusing to provide the minimal accommodation required by the law. But at the moment that the failure to accommodate occurs, there may be next to no measurable cost to the employee.

Discrimination damages our society far beyond what each individual discriminatory act costs. Discrimination tells other people that they are not as valuable, and discourages them from investing in their work. Over time, we all pay the costs of discrimination when this kind of discouragement is pervasive. Small acts of discrimination would never get corrected, and we would all suffer the consequences, without employees being able to get justice for them.

Federal Employees Need to be Able to Afford Justice

Obviously, federal employees often need for attorneys’ fees to be paid because it’s expensive to have an attorney bring discrimination claims against the federal government. Every agency has staff attorneys who handle personnel and discrimination matters. The marginal cost of assigning government attorneys to a discrimination case is almost zero.

But an employee has to seek out someone who has experience in the federal employment field and in particular in EEO cases. This can be expensive, and many employees would have to dip into their savings to be able to afford an attorney. Providing attorneys’ fees to successful litigants ensures that Civil Rights do not become too expensive to enforce.

Federal Employees can Find Attorneys who Work on Contingency

Particularly in the ADA context, as noted before, the dollar amounts at issue may not be very large. For many federal employees, an attorney is simply unaffordable if they have to pay out of pocket. And if they have to rely on the underlying money value of lost backpay or emotional damages, attorneys could only the most egregious cases unless they worked pro bono.

The Civil Rights laws, including the ADA, change this equation. By shifting the cost to employers, the law allows attorneys to be paid for their hard work even if the employee cannot afford it up front. Contingency fee arrangements make it possible for attorneys to take on ADA cases with little or no money being paid by employees. This is particularly important where the employee has lost his or her job and has no income to be able to afford an attorney.

Finding the right Lawyer for an ADA case

Many attorneys (and even some judges) may not be aware that Civil Rights cases provide for payment of attorneys’ fees to employees. That does not mean that all lawyers take ADA cases on contingency, or that a particular ADA claim is right for a contingency arrangement. A client who needs to have a contingent fee arrangement to be able to fund the case may want to ask up front about contingency fees and whether an attorney would consider taking the case on for a contingent fee.