This much is clear and uncontroversial. This in an odd reversal of the policy of automatic liability embraced in Ellerth and Faragher . I pointed out that current caselaw also bars any award of damages against the individuals who perpetrate discrimination. This rule presumably extends to punitive damages as well as back pay and compensatory damages. Finally, we turned to consider attorney's fees.
Defendants receive a fee award, however, only when the plaintiff's claim was objectively groundless.
The differing purposes of these fee awards seem to provide adequate justification for the asymmetry. We saw that the case itself is a little peculiar since the EEOC is the plaintiff against whom the defendant seeks a fee award. The argument justifying asymmetry in this case is a little more difficult. As we saw, this rule creates yet another disincentive to using informal complaint procedures, which typically satisfy neither of these requirements. Then we will turn to discuss the voluntary affirmative action cases including Weber and Johnson .