To start the new year, we are going to have a short discussion of a couple of cases dealing with attorney fees in the serial plaintiff context. Then, we are going to explore the Pregnant Workers Fairness Act that was just signed by Pres. Biden as part of the massive bill to keep the government open. As usual the blog entry is divided into categories and they are: Shayler v. 1310 PCH, LLC; Garcia v. Guadalupe Alcocer; Pregnant Workers Fairness Act highlights; and Pregnant Workers Fairness Act thoughts/takeaways. It is hard to believe that the reader won’t want to read the whole blog entry, but of course the reader is free to focus on any or all of the sections.
Shayler v. 1310 PCH, LLC
In Shayler v. 1310 PCH, LLC, here, the Ninth Circuit in a published decision decided on October 24, 2022, winds up approving a 65% downward multiplier to the total amount of fees and a $300 per hour blended billing rate for plaintiff’s counsel because the nature of the work was turnkey. Also, the court specifically referenced abusive ADA litigation and that the serial plaintiff model allows for a quick recovery of attorney’s fees with relatively minimal difficulty. The cases also include boilerplate filing then rarely involve complex legal issues or any difficult factual discovery. Finally, the court said that $300 per hour was a sufficient figure for a case involving a run-of-the-mill repeat player ADA case lacking in legal, factual, or procedural complexity.
Comment: I know what it takes to keep my doors open even as a solo practitioner practicing virtually. $300 per hour is not much at all. I doubt the firm can make much of a profit at that figure, if any. It is a published decision, so I definitely expect defense firms to utilize this case widely in attempting to keep plaintiff’s attorney fees to the bare minimum.
Garcia v. Guadalupe Alcocer
In Garcia v. Guadalupe Alcocer, here, the Ninth Circuit in an unpublished decision decided on December 8, 2022, holds an award for attorney fees for a defendant involved in litigation with a serial plaintiff. The court said that there was no way the plaintiff attorney could have believed that the plaintiff had a credible intent to return, which is necessary to get injunctive relief, and therefore the defendant was entitled to its fees.
Comment: There can be real advantages for a defense attorney to notice up a deposition immediately to establish standing, an idea that my colleague Richard Hunt frequently brings up in his access defense blog. Also, on the plaintiff side, plaintiff attorneys do need to be aware of the requirement to establish an intent to return when they are prosecuting title III cases. Finally, keep in mind that how intent to return is viewed can vary considerably from jurisdiction to jurisdiction.
Pregnant Workers Fairness Act Highlights
I previously blogged on the Pregnant Workers Fairness Act here, but it pays to go over it as it exists when it was signed into law.
The Pregnant Workers Fairness Act can be found at the very end of the massive bill that Pres. Biden signed to keep the government open. That bill is here. The highlights of the bill follow:
- Applies to employers of 15 or more.
- Applies to Congress.
- Applies to State elected officials and their staff.
- Applies to States.
- Applies to federal employees.
- Applies to religious entities with respect to their employees.
- A key term is “known limitation,” which means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability under the ADA.
- Another key term is “qualified employee,” which means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.
- A person is qualified under the Act if all of the following are true: 1) any inability to perform an essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated.
- “Reasonable accommodation,” and “undue hardship,” have the same meaning as under title I of the ADA and its final implementing regulations, including the interactive process regulations.
- Unlawful employment practices include:
(1) not make reasonable accommodations to the known
limitations related to the pregnancy, childbirth, or related
medical conditions of a qualified employee, unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
(2) require a qualified employee affected by pregnancy,
childbirth, or related medical conditions to accept an
accommodation other than any reasonable accommodation arrived
at through the interactive process referred to in section
(3) deny employment opportunities to a qualified employee
if such denial is based on the need of the covered entity to
make reasonable accommodations to the known limitations related
to the pregnancy, childbirth, or related medical conditions of
the qualified employee;
(4) require a qualified employee to take leave, whether
paid or unpaid, if another reasonable accommodation can be
provided to the known limitations related to the pregnancy,
childbirth, or related medical conditions of the qualified
(5) take adverse action in terms, conditions, or privileges
of employment against a qualified employee on account of the
employee requesting or using a reasonable accommodation to the
known limitations related to the pregnancy, childbirth, or
related medical conditions of the employee.
- Exhaustion of administrative remedies is required.
- This is a fee shifting statute.
- Damages are tied into title VII the of the civil rights act.
- Prohibits retaliation.
- Prohibits coercion, which term includes coercing, intimidating, threatening, and interfering.
- An employer’s good faith effort with respect to the interactive process is a defense to damages just as it is with title I of the ADA.
- EEOC has to come up with regulations within one year of Pres. Biden signing the bill. The regulations implementing the statute with respect to Congress must parallel the EEOC regulations.
- There is a forcible waiver of State sovereign immunity.
Pregnant Workers Fairness Act Thoughts/Takeaways
- A disability is not necessary for person to be protected by the Pregnant Workers Fairness Act.
- Reasonable accommodations and undue hardship mean the same thing as the ADA and that is in the statute. Interesting question as to whether putting this in the statute would allow the Supreme Court to say that undue hardship and reasonable accommodation can mean something different with respect to religion than it does with respect to the ADA and the Pregnant Workers Fairness Act because analogous statutory language and final regulatory language do not exist in the religious accommodation area. Also, while the law theoretically applies to religious employers, don’t forget about Our Lady of Guadalupe and Hosanna-Tabor, here and here for example.
- Interactive process is specifically in the statute. With respect to the ADA, it only appears in the title I regulations but has been adopted widely throughout title I-III jurisprudence.
- In the unlawful employment practices section of the Act, the very first subsection implicitly says that the ADA’s concept of fundamental alteration found in title II and title III of the ADA is very much in play.
- I have said for years that employers should go slowly with respect to insisting on leave rather than engaging in the interactive process and coming up with a reasonable accommodation. Subsection 4 of the unlawful employment practices section makes clear that employers cannot do this. I would expect that ADA plaintiff side lawyers use this particular provision by analogy against employers that force people on leave instead of engaging in the interactive process to see what accommodation may work for an employee with a disability.
- The Act extends to terms, conditions, and privileges of employment.
- Good faith efforts are a defense to damages just like in the ADA.
- Sovereign immunity is forcibly waived. It will be interesting to see how the courts feel about that with respect to the Act’s congruence and proportionality to the harm being redressed. Keeping in mind that since women are in the intermediate class for purpose of equal protection jurisprudence, one has to figure that the odds would be quite high that courts would find sufficient congruence and proportionality and uphold the law as being constitutional.
- The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here.
- The Act means the confusion created by the Supreme Court in Young is now clarified by statute.
- Previously, I have said in many a presentation that it is important to think ADA when accommodating pregnancy as a matter of preventive law, this Act now mandates such thinking.