It pays to read statutes carefully. Many statutes authorizing lawsuits for employment discrimination allow an award of attorney’s fees to the prevailing party. Almost uniformly, these statutes have been construed as authorizing an award of attorney’s fees to a prevailing plaintiff as a matter of course but only to a prevailing defendant when the lawsuit was frivolous. As a result, prevailing defendants rarely if ever receive an award of attorney’s fees.

Now, in a recent decision the California Supreme Court unanimously concluded that, as to one specific provision of the California Civil Code, an award of attorney’s fees to a prevailing defendant is mandatory rather than discretionary. What made the difference? Use of the word “shall” rather than “may.”

Most are familiar with the employment discrimination provisions of the Americans with Disabilities Act, a federal law enacted in 1991. ADA also prohibits discrimination against members of the public who, because of disabilities, cannot obtain full access to public and private buildings, facilities and programs. California responded to enactment of ADA by adding provisions to its Civil Code which convert ADA violations into state law violations and authorize an award of damages as well as injunctive relief. One of these, Civil Code section 55, part of the Unruh Act, provides that attorney’s fees “shall be awarded to the prevailing party.”

In Jankey v. Lee, a wheelchair user sued a small San Francisco grocery store for disability discrimination because of a four inch step leading into the store which could not be navigated by a wheelchair. The store preexisted enactment of ADA and the operator was only a tenant, not the owner of the building. The store operator prevailed on summary judgment by establishing that removing the architectural barrier was not “readily achievable.” The Court then awarded attorney’s fees to the prevailing defendant in the amount of $118,000. The plaintiff appealed and challenged the attorney’s fee award. The Supreme Court affirmed, holding that, because of the statutory language, the trial court was obligated to award attorney’s fees to the defendant.

Civil Code section 55 allows individuals with disabilities who claim they were denied full access to public facilities to bring actions for injunctions. The statute states: “the prevailing party in the action shall be entitled to recover reasonable attorney’s fees.” This language is dramatically different than that in the Fair Employment and Housing Act, for example, which provides: “in actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs.” Similarly, language in Title VII of the U.S. Civil Rights Act of 1964 provides that the court: “in any action or proceeding under this subchapter, in its discretion, may allow the prevailing party, . . a reasonable attorney’s fee.” Based upon a 1978 decision of the U.S. Supreme Court entitled Christiansburg Garment Co. v. EEOC, attorney’s fee awards to defendants have been limited to cases found by the courts to be “frivolous, unreasonable, or groundless.” Prevailing plaintiffs receive awards of attorney’s fees as a matter of course under both statutes.

Defendant Lee was awarded $118,000 in attorney’s fees because the Supreme Court agreed that an award to a prevailing defendant was mandatory under section 55 because the Legislature used the word “shall” rather than “may.” As stated, it’s important to read statutes carefully.