Lawyers can get their attorney fees for successfully representing a plaintiff in employment discrimination cases — sometimes even if a federal jury or judge determines an employer had a "mixed motive" for the discrimination. But according to a recent appellate decision won on behalf of Lori Carr’s employer-client, attorneys may not get their fees for winning a "mixed motive" retaliation claim.

The background to the 5th U.S. Circuit Court of Appeals’ April 15 decision in Anthony Carter v. Luminant Power Services Co. is as follows.

Anthony Carter worked for Luminant Power Services Co. He later sued Luminant in a federal district court under Title VII of the Civil Rights Act of 1964, alleging several unlawful employment practices. Carter claimed that Luminant disciplined him in retaliation for his complaints of racial discrimination.

A jury agreed with Carter in part. It found that Carter’s complaints motivated Luminant’s decision to discipline him. The jury also found, however, that Luminant proved by a preponderance of the evidence that it would have made the same decision irrespective of his complaints.

The district court entered judgment and taxed all costs to Carter. Carter moved for an award of attorney fees under 42 U.S.C. §2000e-5(g)(2)(B)(i), which the district court rejected because it was inapplicable to a "mixed-motive retaliation claim." Carter appealed to the 5th Circuit.

On appeal, Carter argued that his protected activity involved complaints about race comments and that retaliation for a complaint of race discrimination makes race a "motivating factor for the [retaliatory] employment practice" — an argument that the 5th Circuit wrote "has some force."

But the cost-shifting provision of §2000e-5(g)(2)(B)(i) only applies to violations of §2000e-2(m), in which an employee proves discrimination because "race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."

"Section 2000e-2(m) does not provide, however, that an employment practice motivated in part by retaliation is unlawful," wrote Senior Judge Patrick Higginbotham, joined by Judges Carolyn Dineen King and Edith Brown Clement.

"I think a lot of attorneys assumed that you got attorney fees in Title VII cases and didn’t see the distinction between a discrimination or harassment claim as opposed to a retaliation claim," say Carr, a partner in Dallas’ Estes Okon Thorne & Carr, who represents Luminant.

And now the 5th Circuit has corrected that assumption in a decision Carr says is "all a matter of statutory construction."

Michael Scanes, a partner in Waco’s Scanes, Routh & James who represents Carter, did not return a call for comment.

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