Employer's attorneys' fees award stricken again

Under California's discrimination laws, a prevailing employer may not be awarded attorneys' fees or costs "unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." Does the same rule apply if an employee files an action in court and the employer successfully forces the employee into arbitration?

Short-lived award of attorneys' fees

In actions under the California Fair Employment and Housing Act (FEHA), a successful employee is entitled to recover her reasonable attorneys' fees. A prevailing employer, however, may not be awarded attorney fees or costs "unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." While FEHA claims may be included in a predispute arbitration agreement, under the seminal case of Armendariz v. Foundation Health Psychcare Services, an employer may not limit statutorily imposed remedies or "require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court."

Does the same rule apply if an employee files an action in court and the employer successfully forces the employee into arbitration? In the following case, the employer's arbitration agreement authorized recovery of attorneys' fees for a successful motion to compel arbitration of a FEHA lawsuit, even if the employee's opposition to arbitration wasn't frivolous, unreasonable, or groundless.