Advice on Attorney Fees, Attorneys, and HR

➤ Free Court-Appointed Attorneys

Title VII of the Civil Rights Act of 1964, § 706 (f)(1)(B), 42 U.S.C. § 2000e-5(f)(1)(B), provides:

Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, cost, or security.

If you qualify financially, the U.S. District Court may appoint a free attorney for you.  Consult with the Court Clerk when you file a law suit at a U.S. District Court.

Quoted from an OFO Decision (2/8/2011, 0120103671):

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within the sole discretion of the Court.  Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

180 days after filing a formal complaint in the federal EEO process, you may file a law suit at your U.S. District Court, in lieu of requesting an administrative EEOC hearing; or within 90 days of receiving Final Agency Decision or OFO appeal decision.

Non-Attorney Fees and claiming cost of representing yourself

"Reasonable costs incurred directly by a prevailing complainant (e.g., one who is unrepresented or who is represented by a non-lawyer) are compensable. Hafiz, supra. Costs must be proved in the same manner as fees are, and the complainant must provide documentation, such as bills or receipts."    

EEOC Management Directive MD-110, Chapter 11, V, D.

➤ Dealing with Attorneys

Almost all discrimination cases must be filed at an administrative agency first before filing at the court.  In other words, you must exhaust the administrative remedy.  Anyone can represent you at the administrative proceedings. You don't need a lawyer to file at EEOC or state agencies investigating discriminations.  (See EEOC process for private employment discrimination cases; and see the federal EEO process flowchart for federal employment discrimination cases.)

There are more attorneys representing the employers than ones representing the complainants.  This is so because generally it is more lucrative to represent the employer than to represent the employee.  Federal agencies have their own in-house lawyers on payroll to defend themselves when cases are filed at the EEOC for hearing. See EEOC Hearing.

Those few attorneys who represent the complainants, they may charge anywhere between $10,000 or more for an EEOC hearing and a lot more for trial at federal district court.  (Typical hourly fees for attorneys are between $175 to $450 per hour.  In LA, California, one law firm charges anywhere between $200 and $600 per hour.  The hourly rate for their law clerks, paralegal assistants and consultants range from $145 to $210.  Moreover, each email, fax, and phone call may be charged by minutes as well.)  Very few attorneys offer a flat fee for a service.  (If attorneys charge by hour, there is incentive to drag the case longer on the part of the attorneys.)  If a settlement is reached, attorney may claim 50% or more on the total monetary settlement proceeds.  Read the contract with your attorney very carefully and do not be afraid to negotiate the specific contract terms.  But, needless to say, you want to have a good working relationship with your attorney.

Many cases are settled or dropped before ever reaching a hearing.  This is generally so because preparing for the pre-hearing and the hearing is labor intensive; and for that reason, many lawyers and judges want to avoid the hearing.  Many judges (who are overloaded with cases) want to render a summary judgment on the case without holding a hearing.  Without a successful opposition to Agency's or employer's motion for a summary judgment, your case may summarily be dismissed without ever reaching 'a day in the court.'

Your attorney may not be your best advocate.  Rather, he or she may be more interested in fattening his or her wallet. Be aware of deadlines and documents being not submitted to the judge or to the agency/employer as they should.  

It is generally the case that you should not contact the agency or employer directly regarding your pending EEO case, if you are represented by an attorney.  All communication should go through your representative.  However, you should respond to agency's or employer's business or personnel decisions or notices involving yourself, via your attorney or not.  For example, if your agency or employer requires you to report to return to work or to provide medical note certifying further leave, you should respond via your attorney or not.  Failure to do so (because your attorney did not, or did not want to, for some reason) may cause your termination.   Blaming your attorney later for not contacting the agency or employer may be too late.  You must be in charge of the situation.  Don't rely too much on your attorney.

Each state may have a disciplinary board to receive complaints against attorneys who violated the court rules or professional ethics rules.  A well documented threat to report unethical conducts to such a board regarding your lawyer may cause him or her to reimburse the fee (partly or whole).  Just as dealing with the agency or employer, you want to document everything when dealing with your lawyer.
 

➤ Dealing with the Human Resources (HR) Department

HR staff in your agency or company is usually not on your side, contrary to what you may think.  In reality HR department exists to minimize the agency's or employer's risk or liability.  It usually functions as a risk management team. Many HR departments ignore or suppress discrimination complaints, or, if a complaint is filed, try to justify the management's decision against you.  

In many cases reporting to HR may trigger a retaliation or may set a trap in motion to jeopardize your employment, contrary to its stated policy.   However, it is usually good to report to your HR when there is a discrimination or retaliation (for filing a discrimination complaint).  Do it in writing with your signature and date.  And don't expect any satisfactory resolution or help regarding your complaint.

As already said, when you report or complaint a discrimination to HR, do it in writing.  If writing is discouraged or inappropriate at the time of reporting, submit a follow up letter summarizing your allegation of discrimination and what was said by HR in response to your complaint.  This could serve as a valuable evidence later on.  When you report, be sure to mention the D or R word: discrimination or retaliation.  When mentioning discrimination, you should also mention the 'bases' of discrimination.  They are: race, age, sex, disability, color, ethnicity, national origin, and/or retaliation/reprisal.

What HR says in response to your complaint is as important as what you say to HR, as HR is obligated to promptly and thoroughly investigate the charge of discrimination and, if true, to put an end to the practice of discrimination (including harassment).  Therefore, keep a good record of your interaction with HR or with your management regarding discrimination issues.  HR will not and cannot ignore a good paper trail.

Disclaimer: All statements contained in this page are subject to change and update.  EEO 21 does not take responsibility for any errors or misrepresentation contained therein.