Of the Equal Employment Opportunity Commission’s record in court, I wrote last summer that 

…it’s not easy to think of an agency to whose views federal courts nowadays give less deference than the EEOC. As I’ve noted in a series of posts, judges appointed by Presidents of both political parties have lately made a habit of smacking down the commission’s positions, often in cases where it has tried to get away with a stretchy interpretation of existing law. See, for example, the Fourth Circuit’s rebuke of “pervasive errors and utterly unreliable analysis“ in EEOC expert testimony, Justice Stephen Breyer’s scathing majority opinion in Young v. U.P.S. on the shortcomings of the EEOC’s legal stance (in a case the plaintiff won), or these stinging defeats dealt out to the commission in three other cases. 

Occasionally, as in the Abercrombie & Fitch case, the commission manages to prevail anyway. But in last week’s Supreme Court decision in CRST Van Expedited, Inc. v. EEOC, it was back to the dunking booth for the much-disrespected commission. The ruling, written by Justice Anthony Kennedy, was unanimous. It laid out in detail a long tale of shoddy EEOC litigation waged against the Iowa-based trucking company CRST, in which the commission took a female driver’s complaint of sexual harassment during training and attempted to expand it into a giant “pattern and practice” lawsuit that might have been settled for millions. Rather than settling, the trucking company decided to fight. The ensuing litigation did not, to understate things, show the EEOC at its best.

It eventually became clear that the federal anti-bias agency had failed to investigate or otherwise adequately advance more than 150 of the claims it had tried to add, which were accordingly dismissed, leaving only two intact. A federal judge granted CRST attorneys’ fees on the prevailing Supreme Court standard of Christiansburg Garment, which permits defendants to recover fees when an employment discrimination claim is “frivolous, unreasonable, or groundless.”  The EEOC, however, resisted the fee order on the grounds that, under a quirky Eighth Circuit interpretation, even a frivolous claim does not generate a fee entitlement unless decided “on the merits.” And the 150 claims it had bungled had not been dismissed “on the merits” – they hadn’t gotten even that far.

In a brief concurrence, Justice Clarence Thomas notes that while the Kennedy opinion is correct and welcome, the Court really ought to be reconsidering the Christiansburg standard itself, under which a prevailing plaintiff “ordinarily is to be awarded attorney’s fees in all but special circumstances,” while a prevailing defendant may get fees only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Not only does that create a baldly asymmetrical and inequitable fee regime, but it departs from a natural reading of the language of Title VII itself.

In the mean time, my colleague Ilya Shapiro has one more case to add to his long list of the Obama administration’s “unanimous losses, where President Obama doesn’t even get the votes of the two justices he appointed.”