Who Pays the Lawyers? Attorney's Fee Awards in New York Employment Cases

The main employment laws that apply in New York each contain a fee-shifting rule: a court, and in some cases an agency, can order the losing side to pay the winner's reasonable attorney's fees. Under federal Title VII, the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), that award is discretionary: each statute says the court "may" make it.⁠^[1][2][3]

How lawyers charge their own clients is covered in how employment lawyers charge.

What does each law say about attorney's fees?

Law	Fee provision	When the employer can recover fees
Federal: Title VII	The court, in its discretion, may allow the prevailing party (other than the EEOC or the United States) a reasonable attorney's fee, including expert fees, as part of the costs.⁠[1]	Only on a finding that the employee's action was frivolous, unreasonable or without foundation.⁠[4]
Federal: ADA (employment)	The ADA's employment title uses the powers, remedies and procedures of Title VII.⁠[5]	Not separately stated in the provision.
Federal: 42 U.S.C. § 1981 (race discrimination in contracts)	Under 42 U.S.C. § 1988(b), the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.⁠[6]	Not separately stated in the provision.
Federal: FMLA	The court "shall," in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees and other costs to be paid by the defendant.⁠[7]	The provision speaks only of fees paid by the defendant.⁠[7]
New York State: NYSHRL	The Commissioner or the court may in its discretion award reasonable attorney's fees to any prevailing or substantially prevailing party; expert witness fees may be awarded in the same manner.⁠[2]	Only by motion, and only on a showing that the action or proceeding was frivolous.⁠[2]
New York City: NYCHRL, in court	The court, in its discretion, may award the prevailing party reasonable attorney's fees, expert fees and other costs.⁠[3]	Not separately stated in the provision.
New York City: NYCHRL, at the NYC Commission on Human Rights	After a hearing, the Commission can order payment of the complainant's reasonable attorney's fees, expert fees and other costs.⁠[8]	The listed remedy is payment of the complainant's fees.⁠[8]
New York State: Labor Law § 740 (whistleblower retaliation)	The court may order the employer to pay reasonable costs, disbursements and attorney's fees.⁠[9]	In the court's discretion, if the employee's action was "without basis in law or in fact."⁠[10]
New York State: Labor Law § 215 (retaliation for wage complaints)	The court may order payment of costs and reasonable attorneys' fees to the employee by the person or entity in violation.⁠[11]	The provision speaks of fees paid to the employee.⁠[11]

Where the table says "not separately stated," the provision refers to the "prevailing party" without setting out a separate test for a winning employer. That does not mean there is no standard.

Is a fee award automatic when an employee wins?

Not under the three main anti-discrimination laws. Title VII says the court "in its discretion, may allow" a fee.⁠^[1] The NYSHRL says the Commissioner or the court "may in its discretion award" fees.⁠^[2] The NYCHRL says the court "in its discretion, may award" them.⁠^[3]

For Title VII, the Supreme Court's 1978 decision in Christiansburg Garment Co. v. EEOC describes how federal courts use that discretion: the Court said it can be taken as established that a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but special circumstances."⁠^[12] That statement concerns Title VII, whose text still says "may"; it is not a promise of a fee award in any case, and this guide does not attribute it to the State or City law.

A common misstatement is that fees under the State law are mandatory, or are limited to sex discrimination cases. Before the 2019 amendments, fees in employment cases under the NYSHRL were available only where sex was a basis of the discrimination.⁠^[13] A 2019 chapter law extended fees to all claims of employment discrimination and was written with the word "shall"; a same-day chapter amendment changed that to "may in its discretion."⁠^[13] Both took effect on October 11, 2019.⁠^[13][14] A later chapter law, L. 2021, ch. 566, added that expert witness fees may be awarded in the same manner as attorney's fees.⁠^[13]

Who counts as a "prevailing" party?

The statutes use slightly different words. Title VII refers to "the prevailing party."⁠^[1] The NYSHRL refers to "any prevailing or substantially prevailing party."⁠^[2]

The NYCHRL defines the term in its own text, and the definition reaches some cases that end without a judgment. Under the City law, "prevailing" includes a plaintiff whose commencement of litigation acted as a catalyst to effect policy change on the part of the defendant, whether that change came voluntarily, through a settlement or through a judgment in the plaintiff's favor.⁠^[3] This is often called the catalyst provision.

Under federal Title VII, fees can be available even where other remedies are not. If an employee proves that a protected characteristic was a motivating factor and the employer proves it would have taken the same action anyway, the court may not award damages or order reinstatement, but it may grant declaratory relief, injunctive relief, and attorney's fees and costs directly attributable to that claim.⁠^[15]

How is the amount set?

Each provision uses the word "reasonable."⁠^[1][2][3] The City law adds a specific instruction about hourly rates: when the court chooses to factor the hourly rate into the fee award, it applies the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York County.⁠^[16]

None of the provisions quoted here sets a dollar figure or a percentage, and this guide does not estimate what a fee award would be in any case.⁠^[1][2][3]

Can an employer that wins make the employee pay its fees?

The provisions in this guide allow it only in narrow circumstances, and the test depends on the law.

• New York State Human Rights Law. A prevailing respondent or defendant must make a motion requesting fees and show that the action or proceeding was frivolous.⁠^[2] To find it frivolous, the court or the Commissioner must find in writing either that it was commenced, used or continued in bad faith, solely to delay or prolong the litigation or to harass or maliciously injure another, or that it was commenced or continued in bad faith without any reasonable basis and could not be supported by a good faith argument for an extension, modification or reversal of existing law.⁠^[2]
• Federal Title VII. In Christiansburg, the Supreme Court held that a district court may in its discretion award fees to a prevailing defendant upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.⁠^[4] The Court warned against concluding that an action was unreasonable merely because the plaintiff did not ultimately prevail.⁠^[4]
• New York State Labor Law § 740. A court, in its discretion, may order that reasonable attorneys' fees, court costs and disbursements be awarded to an employer if it determines that the employee's action "was without basis in law or in fact."⁠^[10] Health care workers enforce Labor Law § 741 through the same lawsuit and relief provisions of § 740.⁠^[17]

The State law adds a limit: in cases of employment discrimination, a respondent is liable for attorney's fees under the NYSHRL only if it has been found liable for having committed an unlawful discriminatory practice.⁠^[2]

Does the forum change the fee rules?

Yes. Where a claim is decided affects whether and when a fee award is possible.

• State Division of Human Rights. The Commissioner "may only award attorney's fees as part of a final order after a public hearing."⁠^[2]
• NYC Commission on Human Rights. After a hearing, the Commission can order payment of the complainant's reasonable attorney's fees, expert fees and other costs.⁠^[8]

Filing with a State or City agency generally bars a later lawsuit on the same State or City claim, so the choice of forum is hard to undo.⁠^[18][19] See election of remedies and the comparison of the EEOC, the State Division, the City Commission and court.

How does a fee award relate to your own fee agreement?

They are separate. A fee award is an order under a statute directing the other side to pay. A fee agreement is the contract between a client and a lawyer. Under New York's Rules of Professional Conduct, a lawyer may not charge or collect an excessive or illegal fee.⁠^[20] Promptly after being hired on a contingent fee, the lawyer must give the client a writing stating the method by which the fee is determined, including the percentage or percentages in the event of settlement, trial or appeal, and the expenses to be deducted from the recovery.⁠^[21]

How a statutory fee award would be handled alongside a contingency percentage is a question for that written agreement, and a reasonable one to ask before signing. The guide on preparing for a consultation lists others.

Are fees taxed?

Under federal tax law, the Supreme Court has held that, as a general rule, when a recovery is income, the client's income includes the portion paid to the attorney as a contingent fee.⁠^[22] Congress provided a deduction for attorney fees and court costs paid in connection with an action involving a claim of unlawful discrimination, limited to the amount included in income from the judgment or settlement for that year.⁠^[23] The page on whether settlements are taxable explains both points; it is general information, not tax advice.

See also what a New York employment case can recover, what goes into the value of a claim and free and low-cost legal help.