Note: After Price Waterhouse and the Civil Rights Act of 1991: Providing Attorney’s fees to Plaintiffs in Mixed Motive Age Discrimination Cases

Volume 3, Issue 2

Nancy L. Lane

The Civil Rights Act of 1991 (CRA) reaffirmed the congressional commitment to oppose discrimination in the workplace. Section 107 of the CRA directly overrules the Supreme Court’s decision in Price Waterhouse v. Hopkins which denied an award of attorney’s fees to an employee plaintiff who proved that her employer considered illegitimate factors in making employment decision. Price Waterhouse is a mixed motive sex discrimination case brought under Title VII of the Civil Rights Act of 1964.

Age Discrimination in Employment Act (ADEA) case law has traditionally followed the judicial model provided by Title VII. Ms. Lane argues that following the Price Waterhouse model in age discrimination suits would undermine the objective of eliminating age-based discrimination in the workplace — the ADEA’s primary goal. In order to achieve the aim of the ADEA, it is imperative that courts grant attorney’s fees to plaintiff who prove their employers improperly consider age in making employment decisions.

The ADEA remedial structure is designed to compensate victims of age discrimination and to deter employers from such discrimination. The award of attorney’s fees is consistent with the congressional and societal interest in eliminating age-based employment discrimination. The ADEA’s statutory language and legislative history supports a liberal construction of its remedial provisions to realize its compensatory and social policy purposes. Thus, because Price Waterhouse allows an employer to avoid liability — and attorney’s fees –when it considers impermissible factors in an employment decision, it should not be followed in ADEA suits.