Synopsis: A plaintiff is entitled to only limited relief under the Americans with Disabilities Act when a jury finds their disability was a motivating factor in the employment action taken against them, but that the action would have been taken regardless of their disability. This article examines whether that finding is enough to qualify the plaintiff as the prevailing party entitled to an award of attorney's fees.

Most federal legislation designed to protect the rights of individuals from employment discrimination provides for the shifting of the prevailing party's attorney's fees.¹ Among this legislation is the Americans with Disabilities Act (ADA).² The theory behind the fee-shifting provision in the ADA, as in other legislation, is to allow the enforcement of the substantive provisions of the ADA by parties who could not otherwise afford to pursue their claims.³ Unfortunately, many problems arise for the parties and the courts when a request for attorney's fees is made.

The first step in analyzing a request for attorney's fees is to determine if the plaintiff is a prevailing party.⁴ To a person unfamiliar with the term, such as a member of Congress, "prevailing party" may be easy to define. It seems intuitive that the prevailing party is the party that wins. Unfortunately, in the context of legal proceedings "prevailing party" becomes a nebulous phrase.

In many situations, courts have looked to legislation that is similar in purpose and structure to the ADA, such as 42 U.S.C. § 1988⁵ and Title VII,⁶ to guide their decision in making the prevailing party determination. At times, however, the provisions of the comparative statutes are in direct conflict. The most striking contradiction arises when a court applies a mixed motive analysis in determining the liability of the defendant.⁷ The ultimate remedy that follows the jury determination that the discriminatory intent was a motivating factor, but not the ultimate factor, is far different from a standard verdict finding discrimination. This difference guides Title VII and § 1988 in completely opposite directions.⁸ It is in these times that additional guidance is needed.

Section I of this article examines the decisions reached by courts in applying the attorney's fees provision of the ADA and how the courts reached their decisions. Section II discusses the analysis of who is a prevailing party under the two statutes that courts have followed to guide their determination under the ADA, and the instances in which the two statutes diverge. Finally, section III proposes an approach to resolve the conflict among the courts.

I. Current Interpretations of "Prevailing Party"

The ADA contains two provisions that have been used to award attorney's fees to a prevailing party. The most prominent provision is 42 U.S.C. § 12205, which provides that:

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.⁹

This provision directly allows the awarding of attorney's fees and is, the lion's share of the time, the provision followed by the courts.¹⁰

On some occasions, however, courts have awarded attorney's fees under an alternative provision of the ADA. The enforcement provision of the ADA, 42 U.S.C. § 12117, provides that:

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.¹¹

Several courts have interpreted this language to allow the awarding of attorney's fees under the attorney's fees provision of Title VII,¹² to the exclusion of the more specific attorney's fees provision of the ADA.¹³

Compounding this disagreement as to which section of the ADA the courts should follow, the courts have also taken three different approaches to interpreting the term "prevailing party." First, the majority of courts have interpreted § 12205 to follow the interpretation used in § 1988, as set forth by the Supreme Court in Farrar v. Hobby.¹⁴ Of these cases, almost all of them go straight to the determination of prevailing party without addressing the reasons for following the Farrar § 1988 standard.¹⁵ Only one case has made any significant statements as to the reason for applying the standard that is applied in § 1988 cases. In Webb v. James,¹⁶ Magistrate Judge Keys of the District Court for the Northern District of Illinois looked to the legislative history of the ADA and determined that "Congress intended § 12205 to 'be interpreted in a manner consistent with the Civil Rights Attorney's Fees Act,' . . . (§ 1988'), 'including that statute's definition of prevailing party, as construed by the Supreme Court.'"¹⁷

Second, some courts have followed § 12117 to directly apply Title VII in awarding attorney's fees without addressing the provisions specifically allowing attorney's fees in § 12205. Once again, these courts generally also go straight to the determination without addressing why that provision is used to the exclusion of § 12205.¹⁸ The reasoning given by the courts for using Title VII is that it was "adopted by § 107 of the ADA, 42 U.S.C. § 12117, and [entitles the prevailing party] to an award of reasonable attorney's fees and costs."¹⁹ There is no discussion in these cases, however, of the effect of the more specific language of § 12205.

Finally, several courts have applied the attorney's fees provision of § 12205, but have interpreted the ADA to mandate that Title VII be used to determine the remedies and procedures under the ADA, including attorney's fees. Two of these courts found that the inclusion of the Title VII provisions in § 12117 was meant to guide the interpretation of the remainder of the ADA, including the attorney's fees provisions.²⁰ The court in the leading case on this proposition, Roe v. Cheyenne Mountain Conference Resort,²¹ found that "Congress' decision to incorporate in the ADA the remedies and procedures of Title VII cases is a clear indication, we think, that the . . . [procedural rules] should be applied in harmony in cases under the two acts."²² Regardless of this finding, the court did ultimately hold that the standard was the same for both Title VII and § 1988, and the court applied the Farrar standard.²³

The other approach using § 12205 to aid in the interpretation of the ADA using Title VII is set forth in Red Cloud-Owen v. Albany Steel, Inc.²⁴ The court in Albany Steel found that Title VII analysis should be used in interpreting § 12205. The court determined that because the language of § 12205 "essentially parrots" the language of § 2000e-5(k), the Title VII analysis should be used.²⁵ The court then looked to a Title VII case that determines prevailing party to guide its decision.²⁶

As is discussed below, however, the particular approach taken by the court does not usually matter. In most situations, the analysis used in the Farrar decision in a § 1988 case is substantially similar, if not identical, to the analysis used in Title VII cases. Therefore, the lack of a coherent direction followed by the courts that have analyzed this issue only becomes an issue in the few areas in which the analysis differs.

II. Prevailing Party in Civil Rights Legislation

While many federal statutes provide for attorney's fees,²⁷ courts have followed one of two comparable statutes when determining who is a prevailing party under the ADA. These two statutes, Title VII and § 1988, are certainly the most recognized fee-shifting statutes in the United States. Together they allow for fee-shifting for violations of the majority of civil rights laws in place today. On most issues, the statutes use an interchangeable analysis for determining who is a prevailing party. On at least one very important issue, however, they diverge sharply.

A. § 1988, Title VII and the Farrar Standard

The fee-shifting provision of § 1988 covers a wide variety of civil rights statutes.²⁸ The application of this provision is generally based on the Supreme Court's decision in Farrar v. Hobby.²⁹ The court in Farrar, in applying the provisions of § 1988, determined that to be a prevailing party the party must "obtain at least some relief on the merits of his claim."³⁰ The plaintiff must receive a judgment against the defendant from whom the plaintiff is seeking fees, or "comparable relief through a consent decree or settlement."³¹ In summary, the court held that "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."³²

This is an easy determination in most cases. A party who wins damages or is given her job back as the result of a favorable jury verdict is a prevailing party.³³ Courts have held that a party prevails when a favorable settlement is reached.³⁴ Courts have even held that a party prevails when the defendant ceases a discriminatory action, even if it renders the lawsuit moot, provided that the actions of the party were a catalyst in reaching the result.³⁵

The main fee-shifting provision of Title VII, 42 U.S.C. § 2000e-5(k), is almost identical to the provision in the ADA.³⁶ In fact, many courts that have interpreted this section use the Farrar language to make the prevailing party determination.³⁷ Using this and similar analyses, attorney's fees have been awarded when a party actually gets the relief sought at trial³⁸ or reaches a favorable settlement.³⁹

As stated below, however, Congress has enacted a new attorney's fees provision in Title VII that covers a specific situation, and that provision causes a conflict with the Farrar standard.

B. The Conflict in the "Mixed Motive" Standard

The Supreme Court, in Price Waterhouse v. Hopkins,⁴⁰ firmly established the use of what is called the mixed motive standard in employment discrimination cases. The mixed motive standard allows the jury to find that the employer took the adverse employment action based upon discriminatory considerations.⁴¹ Despite this finding, at that point the jury can also find that the employer would have taken the action regardless of the discriminatory motive, thus absolving the employer of liability.⁴²

With regard to Title VII cases, this structure was codified by Congress in 1991 when it amended Title VII to include a mixed motive analysis.⁴³ This section now provides that when the plaintiff proves that the employer acted based upon a discriminatory motive and the employer proves that they "would have taken the same action in the absence of the impermissible motivating factor," the court is limited in the action that can be taken.⁴⁴ Among other limits, the court cannot award damages, order hiring, or mandate promotion.⁴⁵ The court can grant declaratory relief and injunctive relief, provided it does not involve ordering hiring or promotion.⁴⁶ In addition, the court can award attorney's fees and costs directly attributable to the "pursuit of a claim under section 2000e-2(m)."⁴⁷ Therefore, a court can explicitly award attorney's fees despite the failure to alter the legal relationship, as is required under the general prevailing party standard.⁴⁸

Beyond this limited area codified in Title VII, the mixed motive analysis has been applied to a variety of cases. Courts have allowed, but not required, a mixed motive instruction in cases involving § 1981 race discrimination and retaliation,⁴⁹ and the Age Discrimination in Employment Act.⁵⁰ In addition, the mixed motive instruction has been given in ADA cases.⁵¹

The use of the mixed motive instruction in the context of the ADA was analyzed by the Eighth Circuit Court of Appeals in Pedigo v. P.A.M. Transport, Inc. ("Pedigo I").⁵² The court in Pedigo I directly applied the Title VII language, and held that the remedies available under Title VII are the only remedies available.⁵³ Therefore, the plaintiff was entitled only to a declaratory judgment that the action was motivated, in part, by a discriminatory intent, and the court reversed the award of compensatory damages.⁵⁴ This result is the basis of the conflict.

In cases that arise directly under the mixed-motive provision of Title VII, the result is clear. Congress has declared that those plaintiffs are eligible for attorney's fees even without ultimate liability on the part of the employer.⁵⁵

The Tenth Circuit Court of Appeals, in Gudenkauf v. Stauffer Communications, Inc.,⁵⁶ examined the new statute to determine if an award of attorney's fees was merited in a mixed motive case that arose under Title VII. The court in Gudenkauf declined to apply Farrar, and held that because a verdict for the plaintiff on the first part of a mixed motive instruction represents a "victory on a significant legal issue that furthers a public goal," attorney's fees should be awarded in "all but special circumstances."⁵⁷ This analysis recognizes that a verdict that an employer acted, at least in part, motivated by the employee's "race, color, religion, sex, or national origin"⁵⁸ is in and of itself an important victory.

The result would be much different if the Gudenkauf court had followed Farrar. Using Farrar as a guide, the plaintiff is only a prevailing party if the result "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."⁵⁹ This was the analysis used in Pedigo v. P.A.M. Transport, Inc. ("Pedigo II"),⁶⁰ after the original case was remanded to remove the award of compensatory damages and appealed again on the issue of attorney's fees. The court held that the analysis of § 1988 should apply to the determination of attorney's fees,⁶¹ despite holding that Title VII, through § 12117(a), controlled the interpretation of the mixed motive instruction in Pedigo I.⁶² Using the Farrar analysis, the court determined that because a declaratory judgment in no way changes the legal relationship between the parties, the plaintiff was not a prevailing party entitled to an award of attorney's fees.⁶³

The argument could be made that the statutory remedy is limited by its own language to litigation under the provisions of § 2000e-2(m).⁶⁴ Several courts, however, already have expanded the mixed motive remedy structure to apply to retaliation claims under § 2000e-3(a),⁶⁵ and allow for the awarding of attorney's fees in these cases.⁶⁶ The court in de Llano v. North Dakota State University,⁶⁷ in holding that the attorney's fees provision of § 2000e-5(g)(2)(B) -- instead of the provision in § 2000e-5(k) -- applied to a retaliation case, examined the arguments on both sides of this issue. The de Llano court recognized the argument that omission of retaliation from the mixed motive statute would preclude those remedies, but ultimately held that "it would be illogical and contrary to congressional intent to apply different standards of proof and accompanying relief provisions to retaliation claims as opposed to discrimination claims."⁶⁸

Therefore, the determination of prevailing party, following proof that the discriminatory reason was a motivating factor, will change based upon which statute is followed. If the ADA is interpreted to allow the use of the statutory mixed-motive analysis from Title VII, the plaintiff would no longer be precluded from an award of attorney's fees, unlike the Eighth Circuit's determination in Pedigo II.

III. Toward a Resolution

Unless a change is made to bring the differing courts into agreement, the current state of affairs will result in much confusion and inconsistency. As is often the case, the point at which we find ourselves is the result of inconsistent and broad drafting, and a failure of the courts and parties to fully research the intent of Congress, which is often unclear, confusing and inconsistent. Many different approaches can be taken to resolve this issue and each approach has merit. It is important, however, for all to agree on one resolution because of the potential for inconsistent fee awards.

If the court follows § 1988, there will be no possibility of an award of attorney's fees if the employer proves that they would have taken the action regardless of the discriminatory motive. This was the result reached in Pedigo II, and would be the only logical result if the Farrar analysis is followed.⁶⁹ If the court follows Title VII, on the other hand, § 2000e-5(g)(2)(B)(i) allows the awarding of attorney's fees even without changing the legal relationship between the parties. Therefore, the decision of which statute to follow will have a far-reaching effect.

As stated by Magistrate Judge Keys of the Northern District of Illinois in a carefully researched opinion in Webb v. James,⁷⁰ the legislative history certainly points to the use of § 1988 to resolve this issue. The court looked to the House Report and found that Congress at one time intended that § 12205 "be interpreted in a manner consistent with the Civil Rights Attorney's Fees Act [42 U.S.C. § 1988] . . . including that statute's definition of prevailing party, as construed by the Supreme Court."⁷¹

Another equally valid approach, however, would be to interpret § 12117 to mandate that Title VII should be used to interpret the provisions of § 12205. It is a reasonable interpretation of § 12117 that "powers, remedies and procedures" includes definitions and remedies such as § 2000e-5(g)(2)(B). Certainly, the direct language of a statute trumps the theories and postulations of Congress, no matter how directly the House Report seems to direct the interpretation.⁷²

There are other considerations, however, in that the result of this determination has a dramatic effect on the outcome of the question. If § 1988 is followed, proving that a discriminatory motive played a part in an employment decision would still not entitle the plaintiff to any recovery, let alone her attorney's fees. This would potentially allow an atmosphere in which overt disability discrimination "is okay, as long as it was not the only basis" for the employment action.⁷³ In doing this, the courts may encourage employers to find other problems with disabled employees in an effort to remove them based upon their disability.

On the other hand, if Title VII is followed, the courts would be giving disability discrimination the same level of concern as the invidious discrimination proscribed by Title VII. The question of whether disability discrimination, however egregious, is on the same level as invidious discrimination based upon "race, color, religion, sex, or national origin" is a difficult question to answer.

Declaring that a party has prevailed simply because she was able to prove that the employer considered her status in making an employment decision is a big step. Considering an employee's disability in deciding whether she can perform a task is not only to be expected, but is congressionally mandated. The ADA requires employers to make a reasonable accommodation, if possible, for a disabled employee.⁷⁴ This necessarily requires considering an employee's disability when making an employment decision. On the other hand, no reasonable basis exists for considering an applicant's race or sex when making the same decision. For this reason, treating the two types of discrimination the same is illogical.

In a similar vein, the reason behind the § 1988 requirement of an actual change in the legal relationship between parties is to avoid rewarding plaintiffs for simply achieving "nominal" damages, a declaratory judgment, or a technical victory.⁷⁵ The court in Gudenkauf, however, pointed out that Congress supported the awarding of attorney's fees to nominal prevailing parties in Title VII cases to "avoid 'send[ing] a message that a little overt sexism and racism is okay, as long as it was not the only basis for the employer's action.'"⁷⁶ Therefore, the intent of the two statutes, while serving the same ultimate purpose, contains an important distinction.

The distinction, while appearing harsh, is a logical distinction. It is hard to believe that we, as a society, regard all discrimination equally. Allowing a gradation of evil between types of discrimination is both logical and consistent with the enactment of multiple statutes. If all discrimination is regarded equally, then why go beyond one set of statutory requirements?

In the end, the resolution of this question proposed by Congress is probably the optimum solution. In most cases, the result will be the same.⁷⁷ In the few cases in which there is a difference, the step of declaring that disability discrimination is on the same level as Title VII discrimination is a step that courts should be hesitant to take.

Endnotes

See e.g., 2 U.S.C. § 1220(e) (1994) (state government employee rights); 5 U.S.C. § 1214(g)(2) (1994) (Whistleblower Protection Act of 1989); 8 U.S.C. § 1324b(h) (1994) (immigrant-related employment practices); 15 U.S.C. § 2622(b)(2)(B) (1994) (toxic substances whistleblower protection); 29 U.S.C. § 216(b) (1994) (Fair Labor Standards); 29 U.S.C. § 2005(c)(3) (1994) (employee polygraph protection); 33 U.S.C. § 1367(c) (1994) (Clean Water Act whistleblower protection); 42 U.S.C. § 1988(b) (1994) (Civil Rights Attorney's Fees Awards Act); 42 U.S.C. § 2000e-5(k) (1999) (Title VII); 42 U.S.C. § 9610(c) (1994) (CERCLA whistleblower protection).

2 42 U.S.C. 12101 et seq. (1995).

3 "The purpose and effect of [§ 1988] are simple - it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866." Senate Report of the Fee Awards Act, Pub.L. No. 94-559, 1976 U.S.C.C.A.N. (90 Stat. 2651) at 5909-10. See also Julie Davies, Federal Civil Rights Practice in the 1990's: The Dichotomy Between Reality and Theory, 48 Hastings L.J. 197, 208-09 (1997) (stating that purpose of § 1988 was to encourage private attorneys to undertake civil rights cases); Carol S. Schaefer, The Inherent Incompatability of Offers of Judgment and the Civil Rights Laws, 2 Ohio St. J. on Disp. Resol. 153, 155 (1986) (stating that purpose of § 1988 was to make enforcement of civil rights laws financially feasible).

4 For ease of analysis, this article will not discuss the rights of prevailing defendants.

5 42 U.S.C. § 1988(b) (1994). The applicable provision states as follows:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.], or section 13981 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fees as part of the costs .

6 42 U.S.C. § 2000e-5(k) (1994). The general attorney's fees provision states as follows:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commissioner or the United States, a reasonable attorney's fees (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

7 See Section II.B.

8 Id. Title VII codifies specific remedies, including attorney's fees, while the result under § 1988 would likely not include attorney's fees.

9 42 U.S.C. § 12205 (1995)(emphasis added).

0 See notes 14 - 17 and accompanying text.

1 42 U.S.C. § 12117(a) (1994).

2 42 U.S.C. § 2000e-5(k) (1994).

3 See note 9 and accompanying text.

4 506 U.S. 103 (1992).

The Farrar standard is discussed Section II.A.

5 See Caruthers v. Proctor & Gamble Mfg. Co., No. 97-3318, 98-3035 (10th Cir. October 6, 1998); Shrader v. OMC Aluminum Boat Group, Inc., 128 F.3d 1218, 1220 (8th Cir. 1997); Pottgen v. Missouri State High Sch. Activities Ass'n, 103 F.3d 720, 723 (8th Cir. 1997); Pedigo v. P.A.M. Transp., Inc., 98 F.3d 396, 397-98 (8th Cir. 1996) (Pedigo II); R.A. by Martinez v. Dep't of Children, Youth and Families, 18 F. Supp. 2d 157, 160 (D. R.I. 1998); Guckenberger v. Boston Univ., 8 F. Supp. 2d 91, 99 (D. Mass. 1998); Dunkelberger v. Uni-Marts, Inc., Civil Action No. 96-CV-7784 (E.D. Pa. 1998); Caruthers v. Proctor & Gamble Mfg. Co., 161 F.3d 17 (10th Cir. 1998); Rice v. Genova Prods., Inc., 978 F. Supp. 813, 822-23 (N.D. Ind. 1997); Flores v. Villerose, 5 Am. Disabilities Cas. (BNA) (E.D. Pa. 1996)(following earlier interpretation of § 1988 standard as articulated in Metropolitan Pittsburgh Crusade v. Pittsburgh, 964 F.2d 244 (3rd Cir. 1992)). Alexander S. v. Boyd, 929 F. Supp. 925, 930-31 (D.S.C. 1995); Frey v. Alldata Corp., 895 F. Supp. 221, 224-25 (E.D. Wisc. 1995).

6 967 F. Supp. 320 (N.D. Ill. 1997).

7 Id. at 322 ("quoting H.R. REP. No. 101-485, 101st Cong., 2d Sess., pt. 3, at 73 (1990)").

8 See generally Hamlin v. Charter Township of Flint, 165 F.3d 426, 1999 (6th Cir. 1999); Felde v. City of San Jose, 66 F.3d 335 (9th Cir. 1995); O'Grady v. Mohawk Finishing Prods., Inc., (N.D. N.Y. January 15, 1999); Marinelli v. City of Erie, 25 F. Supp. 2d 674 (W.D. Penn. 1998); Dutton v. Johnson County Bd. of County Comm'rs, 884 F. Supp. 431 (D. Kan. 1995).

9 Marinelli v. City of Erie, 25 F. Supp. 2d 674, 680 (W.D. Penn. 1998).

20 Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221, 1231-32 (10th Cir. 1997); Carr v. Fort Morgan Sch. Dist., 4 F. Supp. 2d 998, 1001 (D. Colo. 1998).

2 124 F.3d 1221 (10th Cir. 1997).

22 Id. at 1230.

23. Id. at 1232.

24 958 F. Supp. 94 (N.D. N.Y. 1997).

25 Id. at 95.

26 Id. at 95-96.

Once again, the Second Circuit case followed by the Albany Steel court looks to Farrar to determine who constitutes a "prevailing party." Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996) (Farrar "substantially answered" this determination).

27 See, e.g., the Equal Access to Justice Act, 28 U.S.C. § 2412 (1999); the Copyright Act, 17 U.S.C. § 505 (1994).

28 See note 5.

29 506 U.S. 103 (1992).

The decision to be made in Farrar was whether a de minimis recovery was sufficient to justify the awarding of attorney's fees. Notwithstanding, the opinion did collect the prior opinions on prevailing party status to set forth a framework for the analysis for future use.

30 Id. at 111.

3 Id.

32 Id. at 111-12.

33 See e.g., Robinson v. City of Edmond, 68 F.3d 1226, 1233 (10th Cir. 1995) (Court of Appeals reversed District Court, making the plaintiffs prevailing parties); Goodwin v. Metts, 973 F.2d 378, 379-80 (4th Cir. 1992) (damages awarded in malicious prosecution action); McDonald v. McCarthy, 966 F.2d 112, 113 (3d Cir. 1992) (damages awarded); Roe v. Operation Rescue, 919 F.2d 857, 863 (3d Cir. 1990) (summary judgment in plaintiff's favor).

34 See Maher v. Gagne, 100 S.Ct. 2570, 2575 (1980); Ellis v. University of Kansas Med. Ctr., 163 F.3d 1186, 1194 (10th Cir. 1998); Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998); Riley v. City of Jackson, 99 F.3d 757, 759 (5th Cir. 1996) (settlement for nominal damages and injunction); Stivers v. Pierce, 71 F.3d 732, 752 (9th Cir. 1995); Hill v. Richardson, 7 F.3d 656, 658 (7th Cir. 1993); Stefan v. Laurentis, 889 F.2d 363, 369 (1st Cir. 1989); Ashley v. Atlantic Richfield Co., 794 F.2d 128, 131-32 (3d Cir. 1986).

35 See St. Louis Fire Fighters Ass'n v. City of St. Louis, MO, 96 F.3d 323, 330-31 (8th Cir. 1996); Zinn by Blankenship v. Shalala, 35 F.3d 273, 276 (7th Cir. 1994) (catalyst theory of prevailing party survives Farrar); but cf. S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir. 1994) (Farrar abrogates catalyst theory).

36 See note 9 and accompanying text.

37 See e.g., Bristow v. Drake Street, Inc., 41 F.3d 345, 352 (7th Cir. 1994); Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir. 1991) (follows same cases); Nelson v. Sisters of Charity of the Incarnate Word, Houston, Texas, 967 F. Supp. 929, 931 (S.D. Tex. 1997); Nissim v. McNeil Consumer Prods. Co., Inc., 957 F. Supp. 604, 606 (E.D. Pa. 1997); Hannon v. Chater, 900 F. Supp. 1276, 1282 (N.D. Cal. 1995).

38 See generally Hashimoto v. Dalton, 118 F.3d 671, 676-78 (9th Cir. 1997) (EEOC action taken); Bridges v. Eastman Kodak Co., 102 F.3d 56, 59 (2d Cir. 1996) (prevailed even though nominal damages on federal claims, because received substantial damages on state claims); Nelson v. Sisters of Charity of the Incarnate Word, Houston, Texas, 967 F. Supp. 929, 931 (S.D. Tex. 1997); Hannon v. Chater, 900 F. Supp. 1276, 1282 (N.D. Cal. 1995) (court-ordered employment action); Sanchez v. Philip Morris, Inc., 774 F. Supp. 626, 631 (W.D. Okla. 1991).

39 See generally Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir. 1991) (offer of judgment); Nenetti v. Univ. of Illinois at Chicago, 867 F.2d 990, 994 (7th Cir. 1989) (salary increase, but no money damages, received in settlement); Young v. Kenley, 641 F.2d 192, 195 (4th Cir. 1981); Cox v. National Football League, 889 F. Supp. 118, 120 (S.D. N.Y. 1995) (settlement resulted in rule changes for all players).

40 490 U.S. 228 (1989).

41 Id. at 244.

42 Id. at 244-45.

43 42 U.S.C. § 2000e-5(g)(2)(B) (1994). This provision states as follows:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

Gudenkauf, 158 F.3d 1074.

44 42 U.S.C. § 2000e02(m) (1994). This remedy is ostensibly limited to actions under § 2000e-2(m) in which "race, color, religion, sex, or national origin" were considered in an employment practice.

45 Id.

46 Id.

47 § 2000e-5(g)(2)(B)(i) (1994).

48 See notes 29-32 and accompanying text.

49 Thomas v. Denny's, Inc., 111 F.3d 1506, 1511-12 (10th Cir. 1997) (retaliation based upon race); Hargett v. National Westminster Bank, USA, 78 F.3d 836, 840 (2d Cir. 1996) (race discrimination); New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1483 (7^th Cir. 1990) (race discrimination in denial of building permit).

50 Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995)(not sufficient evidence for instruction); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 (3rd Cir. 1995) (age discrimination claim); Glover v. McDonnell Douglas Corp., 981 F.2d 388, 393-94 (8th Cir. 1992), rev'd on other grounds, 510 U.S. 802.

51 Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995) ("Pedigo I").

52 Id.

53 Id. at 1303.

54 Id. at 1304.

55 42 U.S.C. § 2000e-5(g)(2)(b)(i) (1994).

56 158 F.3d 1074 (10th Cir. 1998).

57 Id. at 1081.

58 Id. 42 U.S.C. § 2000e-2(m).

59 Farrar v. Hobby, 506 U.S. 103 at 111.

60 98 F.3d 396 (8th Cir. 1996).

61 Id. at 397.

62 Pedigo, 60 F.3d at 1303. It is interesting to note that while the three-judge panel changed between Pedigo I and Pedigo II, Judge Morris Sheppard Arnold wrote the opinion in both cases.

63 Id. at 398.

64 See note 43.

65 42 U.S.C. § 2000e-3(a). The applicable provision reads as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

66 See generally de Llano v. North Dakota State Univ., 951 F. Supp. 168, 170-71 (D.N.D. 1997); Woodson v. Scott Paper Co., 898 F. Supp. 298, 306 (E.D. Pa. 1995); Hall v. City of Brawley, 887 F. Supp. 1333, 1345 (S.D. Cal. 1995); but see Tanca v. Nordberg, 98 F.3d 680, 684 (1st Cir. 1996); Riess v. Dalton, 845 F. Supp. 742, 744-45 (S.D. Cal. 1993).

67 951 F. Supp. 168 (D. N.D. 1997).

68 Id. at 170.

69 See notes 59-63 and accompanying text.

70 967 F. Supp. 320 (N.D. Ill. 1997).

71 Id.

72 42 U.S.C. § 12117 (1994).

73 Gudenkauf, 158 F.3d at 1082.

74 Id. 42 U.S.C. § 12112(b)(5)(A) (1994). This section defines discrimination as including "not making reasonable accommodations to the known physical or mental limitations . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . ."

75 Farrar, 506 U.S. 103 at 110-15.

76 158 F.3d 1074 at 1082 (quoting H.R. Rep. No. 102-40(i) at 47, 1991 U.S.C.C.A.N. at 585).

77. See Section II.A.

Mr. Blegen is a law clerk to the Hon. Scott O. Wright of the United States District Court for the Western District of Missouri. He graduated from the University of Missouri-Columbia School of Law in 1998, where he is a member f the Order of the Coif and the Order of Barristers. The opinions expressed in this article are that of the author and are not endorsed by the court.

Ó 1999, Daniel Blegen