The Sixth Circuit Court of Appeals upheld a lower court decision to award attorney's and other fees against plaintiff Equal Employment Opportunity Commission (“Commission”).  In EEOC v. Peoplemark, Inc., No. 11-2582 (6th Cir.), the EEOC filed a complaint against Peoplemark, alleging that Peoplemark had a blanket, companywide policy of denying employment opportunities to persons with felony records and that this companywide policy had a disparate impact on African Americans. After reviewing the company's records it appeared that the alleged companywide policy did not exist. Eventually, the Commission dismissed its claim through joint motion of the parties. Peoplemark moved for costs and attorney’s and expert fees.

The district court awarded Peoplemark fees and costs totaling $751,942.48. This award included attorney’s fees from October 1, 2009, through the end of the litigation, finding that as of October 1 the Commission’s claim was unreasonable to maintain. The award also included all of Peoplemark’s expert fees. The Commission appealed the district court decision and argued that the district court abused its discretion when it imposed attorney’s and expert fees. Alternatively, the Commission argued that the fees were excessive.  

The dissent in the case filed a 50 page document and concluded that attorney's fees should only be awarded in extremely rare instances in discrimination cases and only when there is a frivolous lawsuit or abusive litigation tactics.