Based upon empirical data, there seems to be fewer meritorious discrimination cases these days and a rash of questionable and even frivolous lawsuits. One explanation is that employers are better informed of their legal obligations while fee-shifting—with the possibility of enhanced fees under Rendine v. Pantzer, 141 N.J. 292 (1995)—incentivizes plaintiffs’ employment lawyers to accept specious cases knowing that most employers settle because they cannot afford both defense costs and the risk of having to pay plaintiffs’ legal fees.

How can this problem caused by fee-shifting be ameliorated? Modifying the double standard when deciding whether to award fees to a prevailing party is a place to start. Drastic changes cannot be made because of the laudable public-policy reason for having different standards when awarding legal fees depending upon whether plaintiff or defendant is the prevailing party: to encourage attorneys to take these cases to help combat discrimination in the workplace by handling them on a contingency fee basis, since many terminated employees are in no financial position to retain counsel hourly. Fuchilla v. Layman, 109 N.J. 319 (1988), cert. den., 488 U.S. 82 (1988) (The overarching goal of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”) is “nothing less than the eradication of the cancer of discrimination”).