Christiansburg Garment Company v. Equal Employment Opportunity Commission Brief Amicus Curiae

    I n the

i ’upmn? (ftmtrt of %  Inttefc States
October Term, 1977 

No. 76-1383

Christiansburg Garment Company,

Petitioner,

v.

E qual E mployment Opportunity Commission.

on w rit  op certiorari to th e  united  states 
court op appeals for the  fourth  circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Jack Greenberg 
J ames M. Nabrit, III 
Charles Stephen Ralston 
Melvyn R. Leventhal 
E ric Schnapper

10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



INDEX
Page

Interest of Amicus 1

Summary of Argument 3

Argument. 4

I. An Award of Counsel fees to 
Defendants in Cases Brought 
the Civil Rights Act Is In­
consistent with Newman v. 
Piggie Park Enterprises. 4

II. A Different Standard for Award 
of Counsel Fees to Plaintiffs 
and Defendants Is Required By 
the Policy Considerations Enun­
ciated In the Civil Rights Acts 
and Is Not Inconsistent With 
the language of Title VII 12

Conclusion 21

Table of Authorities
Cases:

Albermarle
(1975)

Paper Co. v. Moody, 422 U.S.405 2

Alyeska Pipeline Service Co.v. Wilderness 
Society, 421 U.S. 240 (1975)

17,18

Bradley v. 
Richmond

School Board of the City of 
, 416 U.S. 696 (1974)

3,7,14

Brown v. Gaston County Dyeing Mach. Co., 
457 F.2d 1377 (4th Cir. 1972)

11

Byram Concretanks, Inc. v. Warren Concrete 
Products Co., 374 F.2d 649 (3rd Cir.1967)

16



- l i -

Page

Carrion v. Yeshiva University, 535 F.2d 
722 (2d Cir. 1975)

13,19

Donaldson v. Pillsbury Co., 554 F.2d 825 
(8th Cir. 1977)

11

Fleischmann v. Maier Brewing Co., 386 U.S. 
714 (1967)

8

Ford v. United States Steel Corp,520 U.S. 
1043 (5th Cir. 1975)

9

Griggs v. Duke Power Co., 401 U.S. 424 
(1971)

2,4,11

International Brotherhood of Teamsters v. 
United States, U.S. , 52 L.Ed.2d 
396 (1977)

11

Johnson v. Georgia Highway Express Co., 
488 F.2d 714 (5th Cir. 1974)

7

Johnson v. Goodyear Tire & Rubber Co., 
491 F.2d 1364 (5th Cir. 1974)

9

Johnson v. Railway Express Agency, 421 
U.S. 454 (1975)

2,11

McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973)

2

NAACP v. Button, 371 U.S.415 (1963) 6

Newman v. Piggie Park Enterprises, 390 
U.S. 400 (1968)

passim

Northcross v. Memphis Board of Education, 
412 U.S. 427 (1973)

3,7,14



Phillips v. Martin Marietta Corp., 400 2
U.S. 542 (1971)

Rich v. Martin Marietta Corp., 522 F.2d 10,11 
333 (10th Cir. 1975)

Robinson v. Lorrillard Corp., 444 F.2d 7
791 (4th Cir. 1971)

Rodgers v. United States Steel Corp., 9
508 F.2d 152 (3rd Cir. 1975)

Rosenfeld v. Southern Pacific Co., 519 7
F.2d 527 (9th Cir. 1975)

Sherrill v. J.P. Stevens & Co., 410 F.Supp. 9
770 (W.D.N.C. 1975)

United Air Lines v. Evans, U.S. , 11
52 L.Ed. 2d 571 (1977)

United States Steel Corp. v. United 13,19
States, 519 F.2d 359 (3rd Cir. 1975)

Watkins v. Scott Paper Co., 530 F.2d 5,11
1159 (5th Cir. 1976)

Wright v. Stone Container Corp., 524 13
F.2d 1058 (8th Cir. 1975)

Other Authorities:

42 U.S.C. §1981 17,20,21

42 U.S.C. §1982 17

42 U.S.C. §1983 17

- n i -
Page

42 U.S.C. §2000e-5(k) 6



H. Rep. No. 94-1558, 94th Cong., 2d Sess. 17
(1976)

110 Cong. Rec. 12722 (June 4, 1964) 6

122 Cong.Rec. H12161 (daily ed.Oct.1,1976) 21

122 Cong.Rec. H12162 (daily ed.Oct.1,1976) 20

122 Cong.Rec. H12165 (daily ed.Oct.1,1976) 17

122 Cong.Rec. S16491 (daily ed.Sept.23,1976) 20

S.Rep. No.94-1011, 94th Cong.2d Sess., 17,18
(1976)

20 U.S.C. §1617 7,17

-iv-
Page



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977 
No. 76-1383

CHRISTIANSBURG GARMENT COMPANY,

v.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION

On Writ of Certiorari to the United 
States Court of Appeals for the 

Fourth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

Interest of Amicus*

The NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation, incorpo­
rated under the laws of the State of New York 
in 1939. It was formed to assist Negroes to 
secure their constitutional rights by the prose­
cution of lawsuits. Its charter declares that 
its purposes include rendering legal aid and 
gratuitously to Negroes suffering injustice by

*Letters of consent to the filing of this 
Brief from counsel for the petitioner and the 
respondent have been filed with the Clerk of the 
Court.



2

reason of race who are unable, on account of 
poverty, to employ legal counsel on their 
own behalf. The charter was approved by a New 
York Court, authorizing the organization to serve 
as a legal aid soceity. the NAACP Legal Defense 
and Educational Fund, Inc. (LDF), is independent 
of other organizations and is supported by 
contributions from the public. For many years 
its attorneys have represented parties in this 
Court and the lower courts, and it has partici­
pated as amicus curiae in this Court and other 
courts, in cases involving many facets of the 
law.

Attorneys for the Legal Defense Fund have 
handled many cases involving Title VII of the 
Civil Rights Act of 1964 and discrimination in 
employment generally.* In addition, the Fund has 
been primarily responsible for the development of 
the law regarding counsel fee awards under 
the various Civil Rights Acts having represented 
plaintiffs in the leading cases of Newman v. 
Piggie Park Enterprises, 390 U.S. 400 (1968);

*E.G .. Phillips v. Martin Marietta Corp. ,
400 U.S. 542 (1971); Griggs v. Duke Power Co.,
401 U.S. 424 (1971); McDonnell Douglas v. Green, 
411 U.S. 792 (1973); Johnson v. Railway Express 
Agency, 421 U.S. 454 (1975); Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975).



Northcross v. Memphis Board of Education, 412 
U.S. 427 (1973); and Bradley v. School Board of 
the City of Richmond, 416 U.S. 696 (1974). 
As counsel for plaintiffs in civil rights cases 
we have a direct interest in the resolution of 
the question before the Court in this case.

SUMMARY OF ARGUMENT
I.

The award of counsel fees to prevailing 
Title VII defendants as a matter of course would 
have a chilling effect on the filing of com­
plaints by plaintiffs, regardless of the merits 
of their cases. Such a result is precluded 
by this Court's decision in Newman v. Piggie Park 
Enterprises, 390 U.S. 400 (1968), which held that
the purpose of the counsel fee provisions in the 
Civil Rights Act of 1964 was to "encourage 
individuals injured by racial discrimination to 
seek judicial relief."

II.
Congress intended to encourage the bringing 

of private lawsuits to enforce the provisions of 
the 1964 civil rights act. On the other hand, it 
sought to discourage frivolous and vexatious 
litigation by allowing counsel fees to prevailing 
defendants under those limited circums tances. 
The counsel fee provision in Title VII must be

- 3 -



- 4 -

read in light of the intent of Congress as 
expressed both in 1964 and in more recent civil 
rights counsel fee enactments.

ARGUMENT
I.

An Award of Counsel Fees to Defendants 
Tn~ Cases Brought Under the Civil Rights 
Act Is Inconsistent with NewmatTv^
Piggie Park Enterprises.
The resolution of the issue raised by the 

present case, whether prevailing defendants in 
Title VII actions are to receive counsel fees on 
the same basis as are prevailing plaintiffs, will 
determine whether or not Title VII of the 
Civil Rights Act of 1964 remains as a viable 
remedy for those on whose behalf it was passed. 
Title VII involves complex and difficult issues, 
particularly in cases that are brought as across- 
the-board class actions challenging systemic 
practices of employers. From the time of the 
filing of the complaint to the completion of 
trial, up to 5 years may be required because of 
the difficult problems such litigation presents. 
Thus, the plaintiffs must be prepared to analyze 
in depth a variety of practices that may impinge 
on employment opportunities, including tests,— ''

2 / See, e.g., Griggs v. Duke Power Co, 401 U.S. 
424 (1971).



- 5 -
2/methods of promotions—  and the like. Statisti­

cal and computer analyses of data, the use of 
expert witnesses to analyze information, to 
testify concerning the validity of tests, and to 
suggest alternative ways of organizing a work 
force so as to remove obstacles to equal employ­
ment opportunities are essential parts of litiga­
tion.

Needless to say, the bringing and maintain­
ing of such litigation involves substantial 
resources not only in personnel but in funds. 
Lawyers' fees and expenses, expert witness fees 
and expenses, salaries of research analysts and 
computer personnel, and other funds expended as 
ordinary costs of litigation must be found. Such 
resources are far beyond the reach of ordinary 
Title VII plaintiffs, who are most likely blue 
collar workers at the lowest rung in the salary 
scale. Indeed,it is because of their pos it ion 
economically that such workers have sought out 
the aid of the courts to achieve equality of 
opportunity for themselves and others similarly 
situated. Even in class actions, groups of 
workers rarely have the funds necessary to 
carry out their s ide of the litigation with­

2/ See, e.g. , Watkins v. Scott Paper Co., 530 
F.2d 1159 (5th Cir. 1976).



out the assistance of organizations such as the 
Legal Defense Fund. Thus, their own lawyers are 
either on the staff of a civil rights organiza­
tion, or are attorneys in private practice work­
ing in cooperation with such organizations who 
receive only a minimal fee (see, e.g., NAACP v. 
Button, 371 U.S. 415 (1963)), but who do have the 
expectation of an eventual award of counsel fees 
under 42 U.S.C. §2000e-5(k).

It was precisely these concerns - the burden 
on privarte plaintiffs - that led Congress to
enact a counsel fee provision as part of Title 

3/ .VII.—  In Newman v. Piggie Park Enterprises,

-  6 -

3 / Congress recognized at the time it passed 
the Civil Rights Act of 1964 that a significant 
part of the burden of enforcing the Act would 
fall on private plaintiffs. Although the legisla­
tive history of the counsel fee provisions in 
the Civil Rights Act of 1964 is not lengthy, it 
indicates that Congress' main concern was to 
provide an incentive for plaintiffs to file 
lawsuits to enforce the rights established by 
the Act. Thus, concern was expressed over the 
fact that private plaintiffs lacked resources to 
bring and presecute the kind of actions that 
would be necessary under the Act. The counsel 
fee provisions were inserted for the specific 
reason to provide fee shifting so that a success­
ful plaintiff would be able to obtain his 
counsel fees. See, 110 Cong. Rec. 12722 June 4, 
1964).



7

390 U.S. 400 (1968), this Court held that the 
Congressional purpose of encouraging private 
enforcement of the national policy embodied in 
Title II of the Civil Rights Act of 1964 required 
that counsel fees be awarded to prevailing 
plaintiffs as a matter of course. This rule has 
subsequently been applied by this Court to 
private actions brought to integrate schools 
within the scope of 20 U.S.C. §1617 (Northcross 
v. Memphis Board of Education, 412 U.S. 427 
(1973); Bradley v. Board of Ed. of Richmond, 416 
U.S.696 (1974)), and by the courts of appeals in 
cases arising under Title VII of the Civil Rights 
Act of 1964 (see, e.g . , Johnson v. Georgia 
Highway Express Co., 488 F.2d 714 (5th Cir. 
1974)); Robinson v. Lorrillard Corp., 444 
F.2d 791 (4th Cir. 1971); Rosenfeld v. Southern 
Pacific Co. , 519 F.2d 527 (9th Cir. 1975)).

We urge that the award of counsel fees to 
defendants as a matter of course is precluded by
this Court's decision in Newman and would be 
clearly inconsistent with Congressional intent 
in enacting the counsel fees provisions as 
part of the various civil rights acts.

In the first place, it is obvious that 
given the fact that Title VII plaintiffs usually 
cannot afford to bear the costs of their own side



of litigation, it would be impossible for them to 
bear the costs of the defendant's side as well.—  ̂
This, however, is the result sought by the peti­
tioner in the present case. The Court must keep 
in mind that this case arises in a posture which 
may not present this particular problem, since it 
involves an agency of the federal government. 
The Equal Employment Opportunity Commission, of 
course, does not have the economic problems faced 
by private Title VII plaintiffs. However, the 
arguments made by petitioner would apply with 
equal force to cases brought by private plain­
tiffs, and therefore the Court must decide the 
issue in the light of the policy considerations 
that led Congress to pass the attorneys' fees 
provision to begin with as decided by Newman.

-  8 -

4/ Indeed, this Court has explained one of the 
rationales for the prevailing American rule in 
terms of the effect of routine fee-shifting 
on poor litigants:

In support of the American rule, it 
has been argued that since litigation 
is at best uncertain one should not be 
penalized for merely defending or 
prosecuting a lawsuit, and that the 
poor might be unjustly discouraged from 
instituting actions to vindicate their 
rights if the penalty for losing 
included the fees of their opponents' 
counsel. Fleischmann v. Maier Brewing 
Co., 386 U.S. 714, 718 (1967).



9

The effect of the threat of paying counsel 
fees to a defendant who prevails in a Title VII 
action as a matter of course will necessarily 
mean that many plaintiffs who may have valid 
claims, or whose claims are substantial enough 
to warrant full consideration by the courts, will 
simply either not bring law suits or will so 
restrict their law suits as to render enforcement 
of the Act ineffective. Civil rights attorneys in 
advising potential plaintiffs whether or not to 
bring an action will have no choice but to warn 
them that they may become personally liable for 
the counsel fees and expenses of their adversar­
ies even when those adversaries have enormous 

5/r e s o u r c e s A n  attorney could not in good 
conscience permit plaintiffs of limited resources 
to be driven to bankruptcy if they do not prevail.

These concerns are not speculative, but 
arise from our experiences since 1965, the 
effective date of Title VII, in handling hundreds 
of Title VII actions against employers ranging 
from the United States Steel Corporation to

5/ See e.g., Ford v. United States Steel Corp., 
520 U.S. 1043 (5th Cir. 1975); Rodgers v. United 
States Steel Corp., 508 F.2d 152 (3rd Cir. 
1975); Johnson v. Goodyear Tire & Rubber Co., 491 
F.2d 1364 (5th Cir. 1974); Sherrill v. J.P. 
Stevens & Co., 410 F.Supp. 770 (W.D.N.C. 1975).



10 -

smaller concerns, and from the largest industrial 
unions down to small locals. The issue must be 
viewed from the perspective of the plaintiff and 
of plaintiff's counsel in light of the Newman 
ruling that the purpose of the counsel fee 
provision is to encourage litigation.

A plaintiff has no assurance that he will 
prevail when he, or she, is deciding whether 
to initiate litigation. His access to facts is 
limited; typically, he only knows that he has not 
gotten a job or promotion. The underlying facts 
are in the possession of the prospective defen­
dant and can only be obtained after discovery.—  ̂
Even after the raw data has been obtained, 
sophisticated analysis is required to determine 
precisely in what ways employment practices deny 
equal opportunity.

The law of Title VII has developed gradually 
and has taken dramatic shifts from time to 
time.—  Thus, it is difficult for a plaintiff

6/ See, e.g., Rich v. Martin Marietta Corp., 522 
F.2d 333, 342-45 (10th Cir. 1975).

]_/ For example, only last term this Court held, 
contrary to most courts of appeals, that senior­
ity systems did not violate Title VII if they 
simply perpetuated the effects of pre-Act discrim­
ination in the absence of an intent to discrimi­
nate. International Brotherhood of Teamsters v.



11

to predict that a case will be won even if the
facts seem clear. Similarly, district court
judges themselves often err in deciding cases,

8 /requiring reversal by the appellate courts. '
If a court, after a full trial of the evidence
can make a mis-judgment, a plaintiff should not
be penalized if he assesses his case wrongly
before a complaint is ever filed.

Even though a plaintiff may have a valid
claim on the merits, he may lose becasuse of

9 /a procedural bar not easily foreseen.—  Also 
to be considered is the result if a plaintiff 
prevails on some issues but not all. Are 
counsel fees to be apportioned, so that those

7/ Cont1d.
United States, U.S. , 52 L.Ed.2d 396
(1977)).

87 See, e.g., Griggs v. Duke Power Co., 401 U.S. 
424 (1971); Brown v. Gaston County Dyeing Mach. 
Co., 457 F.2d 1377 (4th Cir. 1972); Watkins v. 
Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976); 
Donaldson v. Pillsbury Co., 554 F.2d 825 (8th 
Cir. 1977); Rich v. Martin Marietta Corp., 522 
F.2d 333 (10th Cir. 1975).

9]  See, e.g. , Johnson v. Railway Express 
Agency, 421 U.S. 454 (1975); United Air Lines 
v. Evans, U.S. , 52 L.Ed.2d 571
(1977).



12

awardable to indigent plaintiffs are cancelled 
out by those awardable to a corporate defendant?

To catalogue the difficulties facing a 
prospective Title VII plaintiff and his counsel 
in trying to foresee whether they will ultimately 
be successful, is to demonstrate the destructive 
effect of the rule argued for by petitioner 
here. In short, the only purpose and effect a 
rule awarding counsel fees to prevailing defen­
dants as a matter of course would be to discour­
age and chill the private enforcement of Title 
VII. Such a result would be totally inconsistent 
with Newman and, as will be shown below, with 
Congressional policy.

II.
A Different Standard for Award of 
Counsel Fees To Plaintiffs and Defen­
dants Is Required By The Policy Consider­
ations Enunciated in the Civil Rights 
Acts and Is Not Inconsistent With the 
Language of Title VII.
As discussed above, Congress' purpose in 

enacting a counsel fee provision as part of Title 
VII was to encourage plaintiffs to bring litiga­
tion. Clearly, a provision which would give 
counsel fees as a matter of course to prevailing 
defendants would defeat the congressional purpose,



13 -

since potential plaintiffs would have to weigh 
the possibility of an award of significant 
attorneys' fees against them even in a case which 
presented substantial issues and which deserved 
to be filed and prosecuted in court. The lower 
courts have therefore adopted the rule that the 
standard for assessing fees is different for 
plaintiffs and defendants. Thus, in conformity 
with Newman v. Piggie Park Enterprises, supra, 
they have held that a prevailing defendant 
may obtain counsel fees only when the court finds 
that the action was brought in bad faith, for 
vexatious reasons, and for the purpose of harass­
ment. See, e.g. , Carrion v. Yeshiva University, 
535 F.2d 722 (2d Cir. 1976); United States Steel 
Corp. v. United States, 519 F.2d 359 (3rd Cir. 
1975); Wright v. Stone Container Corp., 524 F.2d 
1058 (8th Cir. 1975).

Petitioner seeks to refute these decisions 
by maintaining that the plain meaning of the 
statute shows that the standard for both plain­
tiffs and defendants is to be the same; i.e. , 
since the statute makes no distinction on its 
face, no distinction can be read into it by the 
courts. We would urge that the statute is not 
nearly as plain as petitioner contends, and that 
the problem with petitioner's position is that



14 -

it focuses on the wrong part of the statute. 
The fact that both parties may get counsel fees 
on some occas ions, doe s not in any way, as 
petitioner contends, mean that they are to get 
them on the same basis. The part of the statute 
which deals with that question is the language 
stating that the court may "in its discretion" 
award fees.

The question then becomes what standards 
are to govern the court's discretion in a partic­
ular case. The statute does not speak to that 
specifically, certainly not in its language, and 
it is wholly appropriate to turn to the legis­
lative history for guidance as to what the 
standards for the exercise of discretion should 
be. When one does so, it becomes apparent 
that the standards should not the same if the 
court is deciding whether to grant counsel 
fees for the plaintiff as opposed to granting 
them for the defendant. As this Court has 
discussed in Newman v Piggie Park, supra, as well 
as in cases following it dealing with other 
counsel fees statutes in civil rights cases, such 
as Northcross v. Memphis Board of Education, 412 
U.S. 427 (1973) and Bradley v. School Board of 
Richmond, 416 U.S. 696 (1974), the standard for
prevailing plaintiffs is that counsel fees are



15 -

to be awarded except in unusual circumstances 
so that the Congressional purpose of encouraging 
litigation would be carried out. As we have 
discussed at length above, to allow counsel fees 
as a matter of curse to prevailing defendants 
would have exactly the opposite effect and would 
discourage litigation, and thus run contrary to 
congressional purpose. Discouraging frivolous or 
vexatious litigation, however, is wholly consis­
tent with congressional purpose, both because no 
valid purpose at all would be furthered by such 
litigation, and by discouraging it the courts 
would be free to focus their attention on those 
cases which present substantial issues arising 
under the civil rights laws.— ^

10/ During the Congressional debates, concern 
was expressed that the counsel fees provision 
could encourage "ambulance chasing", and could 
lead to the bringing of frivolous law suits for 
the purpose of obtaining a fee. In response, it 
was pointed out that the "prevailing party" 
language would permit an award to defendants in 
vexatious and insubstantial suits and thus 
discourage the bringing of totally unmeritorious 
litigation. See, 110 Cong. Rec. 14201, 14213-14 
(June 17, 1964).



16 -

Petitioner presents another argument that 
allegedly supports its reading of the statute. 
That is, if the standard for defendants is 
harassment, bad faith, or vexatious litigation, 
there is no need to have the statute read "prevail 
ing party", since the defendant would be entitled 
to counsel fees under that standard pursuant to 
the American rule in any case. Thus, it is 
argued, the statute would have no meaning 
with regard to defendants. This conclusion does 
not follow, however. If the statute read "prevail 
ing plaintiffs" and counsel fees awards were 
limited to such plaintiffs, then the statute 
would bar counsel fees on behalf of defendants 
under all circumstances. Under such a reading, 
the American rule would be abrogated for defen­
dants in civil rights cases since even in 
instances where litigation was frivolous or 
brought in bad faith they could not be awarded by 
the courts.

It is certainly clear that Congress's view 
now is that the standard should be different for

11/ See, e.g., Byram Concretanks, Inc, v. Warren 
Concrete Products Co., 374 F.2d 649 (3rd Cir. 
1967).



17 -

plaintiffs and defendants in civil rights cases. 
In 1976 Congress passed the Civil Rights Attor­
neys' Fees Act of 1976, designed to fill gaps 
created by the decision of this Court in Alyeska 
Pipeline Service Co. v. Wilderness Society, 
421 U.S. 240 (1975). In that decision, this 
Court disapproved decisions of the lower federal 
courts applying the "private attorneys general" 
standard, enunciated with regard to Title II and 
20 U.S.C. §1617, to actions brought under 42
U.S.C. §1981, 1982 and 1983, the post-Civil War

. . . 12 /Reconstruction civil rights acts.—  Congress 
was concerned that this result created an anomaly 
in that under the post-1964 civil rights acts 
fees were awarded to plaintiffs as a matter of 
course, whereas in pre-1964 civil rights act 
cases counsel fees were awardable only under 
the much more restrictive American rule. As was 
pointed out in the committee reports, and often 
during the debates on the 1976 Act, employment
discrimination cases could be brought either under

1 3/§1981 or under Title VII.— 'However, under the

12/ 421 U.S. at 270, n.46.

13/ See H. Rep. No.94-1558, 94th Cong., 2d 
Sess., pp. 2-5 ( 1976); S. Rep. No. 94-1011, 
94th Cong., 2d Sess., pp. 1-4 (1976); 122 Cong. 
Rec. H12165 (daily ed. Oct.l, 1976)(Remarks of 
Rep. Seiberling).



18 -

Alyeska decision, counsel fees were awardable 
only under Title VII. Thus, even though an action 
might deal with the same issues and serve exactly 
the same public purpose, counsel fees could not 
be obtained.

It was specifically to clear up this 
anomaly and to bring about uniformity for all 
civil rights actions with regard to counsel fees 
that the 1976 Act was p a s s e d . D u r i n g  the 
course of the enactment of the statute, in both 
the House and the Senate extensive attention was 
given to decisions of this and the lower courts 
interpreting the counsel fees provisions under 
the post-1964 Civil Rights Acts. Newman v.

14/ The Senate Report stated the purpose of 
the Act thus:

This amendment to the Civil Rights 
Act of 1866, Revised Statutes Section 
722, gives the Federal courts discre­
tion to award attorneys' fees to pre­
vailing parties in suits brought to 
enforce the civil rights acts which 
Congress has passed since 1866. The 
purpose of this amendment is to remedy 
anomalous gaps in our civil rights 
laws created by the United States 
Supreme Court's recent decision in 
Alyeska Pipeline Service Co. v. Wilder­
ness Society, 421 U.S. 240 (1975), and 
to achieve consistency in our civil 
rights laws. S. Rep. 94-1011, 94th Cong. 
2d Session, p. 1 (1976).



19 -

Piggie Park Enterprises, supra, was cited as 
establishing the proposition that plaintiffs were 
to be given counsel fees as a matter of course 
when they prevai led Contrariwise, the
decisions in Carrion v. Yeshiva University, supra 
and United States Steel Corp.v. United States, 
supra, were cited as es tablishing that the 
standard for defendants was dif ferent.— ^That
is, defendants were to obtain counsel fees only 
when the action was found to be brought in bad 
faith and for harassment.

Indeed, during the debates the question was 
raised as to whether it was necessary to specify 
"prevailing parties" if all the defendants could 
get what they were entitled to under the American 
rule to begin with. The answer was given that it 
was not the Act's intent to foreclose defendants 
from getting counsel fees under all circumstances. 
It was pointed out that the United States had 
suggested to the House committee that counsel 
fees be limited to "prevailing plaintiffs". The 
suggestion was rejected because Congress still 
wished to deter frivolous lawsuits by plaintiffs,

15/ See, e.g., id. at p. 3

16/ See, id. at p. 5.



20 -

and thus allow defendants to get attorneys fees 
under the standard which prevailed under the 
American rule.-t^

In both the Committee reports and repeatedly 
on the floor of the House and the Senate the 
question of standards for awards of counsel fees 
was discussed. It was consistently stated that 
Congress intended that a different standard 
apply, that it intended that the same standard 
apply in the 1976 Act that was required by the 
courts under their interpretation of the 1964 
Act,and that the purpose was to bring about 
uniformity with regard to all civil rights 
actons. Thus, given this legislative history, it 
is indisputable that, for example, in an action 
brought under §1981 for equal employment, the 
defendant could receive counsel fees only upon a 
showing of bad faith and harassment. If a 
contrary result were reached in the present 
action, however, the wholly anomalous result would 
be that there would again be a lack of uniformity 
in the standards applied in civil rights cases. 
Plaintiffs would simply be encouraged to file

IZ/ See, e.g.; 122 Cong. Rec. H12162 (daily ed. 
Oct. 1, 1976 (Remarks of Rep. Kastenmeier); 122
Cong. Rec. S16491 (daily ed. Sept. 23, 1976) 
(Remarks of Sen. Tunney).



21

their lawsuits under §1981 and thereby not to 
file administrative complaints with the EEOC, 
avoiding Title VII completely, a result that 
would be who 1ly contrary to Congressional 
intent.— ^

Conclusion

For the foregoing reasons, the decision of 
the Court below should be affirmed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT III 
CHARLES STEPHEN RALSTON 
MELVYN LEVENTHAL 
ERIC SCHNAPPER

10 C o l u m b u s  C i r c l e  
Suite 2030
New York, New York 10019 

Attorneys for Amicus Curiae

18/ Thus Rep. Railsback, one of the sponsors of 
the bill, stated on the floor of the House just 
prior to passage: "It is not the intent of Con­
gress nor is it the intent of this statute to 
encourage persons to sue directly under section 
1981 rather than using the services provided by 
the Equal Employment Opportunity Commission under 
Title VII of the Civil Rights Act.Congress has 
established the EEOC to remedy individual com­
plaints as well as patterns and practices of 
illegal discrimination and has authorized the 
Commission to sue on behalf of the plaintiffs." 
122 Cong. Rec., H12161 (daily ed. Oct.1,1976).



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