THE GRANDADDY OF ALL FAQs

No question is asked of us more frequently than this question: Can I charge my opponent for my legal fees?

In general, the answer is no: Each party bears and pays his or her own litigation expenses, including attorney's fees. This is known as the "American Rule," as distinct from the "English Rule" -- Loser pays. (The "English Rule" drove the playwright Oscar Wilde into bankruptcy following his failed lawsuit for libel against the Marquess of Queensberry.)

There are exceptions to the "American Rule" when the case entails a contract that calls for fee-shifting, such as an apartment lease, or a statute that does so, such as Title VII of the Civil Rights Act.

A bill now pending in the Illinois Senate would permit fee-shifting in favor of defendants who prevail in lawsuits brought against them in small claims court for enforcement of consumer contracts if the complaint prays for an award of fees in favor of the plaintiff and the defendant was not represented by an attorney when the consumer contract was negotiated. (Senate Bill 1901, Consumer Reciprocal Attorney's Fees Act, sponsor: Sen. Daniel Biss, Skokie).

Other examples of contracts that contain fee-shiftings clauses are potentially infinite. One that stands out was used by a general contractor for its subcontracts. It provided that the litigation expense (including attorney's fees) of the general contractor would be borne and paid by a subcontractor who sued and recovered less than 75 percent of the amount claimed due in the initial complaint.

Statutes which contain fee-shifting clauses include:

Illinois Consumer Fraud and Deceptive Business Practices Act

Illinois Wage Payment and Collection Act

Americans with Disabilities Act

Age Discrimination in Employment Act

HOW DO YOU GET TENURE WHEN YOU HAVE NOT PUBLISHED? YOU SUE, OF COURSE.

by David McCarthy

There was a time when it was widely understood and accepted that tenure was conditioned on being published.

Interestingly, officials of the University of Wisconsin were sued for refusing (by a vote of 7 to 1) to grant tenure to an assistant professor of physical education who had published nothing. The contract of employment did not guarantee tenure, but only that plaintiff would be considered for tenure. The case was dismissed on dispositive pre-trial motions and the Seventh Circuit Court of Appeals affirmed the dismissal.

Plaintiff brought a claim under Title VII of the Civil Rights Act that alleged sexual discrimination in the form of "associational discrimination."

It contended, in gist, that tenure had been denied to plaintiff because of her association with a male employee of the university who had earlier filed a sex discrimination claim (and who also cast the only vote in favor of granting tenure to plaintiff). The Title VI claim was found to be time barred.

A claim predicated on denial of equal protection failed for want of evidence that plaintiff had been treated differently from similarly situated candiates for tenure and for want of evidence that the individual defendants were motivated by an intent to discriminate against persons such as plaintiff.

Plaintiff asserted that she was a class of one, a heterosexual female professor who befriended a heterosexual male professor who filed a sex discrimination complaint. However, she did not carry her burden of establishing that the defendant's justification for discriminating against her was irrational and arbitrary.

Finally, the Court rejected a claim that denial of tenure carried a stigma so great that at two different performance reviews prior to the time when plaintiff came up for tenure, the Dean had told her that publishing would be a "critical factor" in the tenure decision.

After the litigation commenced and after the defendants filed their motion for summary judgment, the response of plaintiff flagrantly disregarded local rules pertaining to statements of fact and citations of law. The trial judge therefore disregarded a large part of plaintiff's opposition. Plaintiff charged the trial judge with abuse of discretion. The Court of Appeals rejected that contention.

NIGHT-SHIFT DUTY IS NOT SEXUAL DISCRIMINATION

by David McCarthy

Being transferred from the day shift to the night shift does not constitute sexual discriminiation.

A woman grown accustomed to the day shift quit as soon as she had been transferred to the night shift and sued for "constructive" discharge on the grounds that any reasonable person would deem the change of shift unbearable.

The Seventh Circuit Court of Appeals affirmed summary judgement in favor of the defendant-employer on the grounds that transfer from day shift to night shift did not constitute an "adverse employment action."

The case is noteworthy for its rejection of the sexist position of the plaintiff.

She accused her boss of preying on her "wifely instincts": He knew she would resign rather than accept transfer to the night shift because she was a dutiful wife, caregiver in the home and not the principal breadwinner.

Or so the argument went.

The Appeals Court remarked that the plaintiff -- apart from having no evidence in support of her speculations -- was attempting to build a case on the very gender stereotyping which Title VII of the Civil Rights Act of 1964 was designed to eradicate from the workplace (Grube v. Lau Industries Inc. No. 00-4131, 7-19-01).