Court Travels Back in Time to Assess Fee Award
The Equal Employment Opportunity Commission (EEOC) brought an enforcement action against an employer alleging it engaged in a pattern or practice of resistance to the full enjoyment of Title VII rights by conditioning severance pay on employees' signing of separation agreements that allegedly deterred employees from filing charges and interfered with their ability to communicate voluntarily with the EEOC. The employer obtained summary judgment and an award of attorney's fees. The Seventh Circuit reversed the fee award holding the EEOC's legal theory was not frivolous and its action was not based on an unreasonable factual foundation. The court was compelled to “turn back the calendar” and ask how the EEOC’s theory as a matter of law looked in light of the available statutes, regulations, and case law at the time the action was litigated.