concurring.

I agree with the results reached by the majority. I write separately to point out the problems I find in the sweeping language used by Judge Reinhardt.

I strongly disagree with the tone of the final two paragraphs of the majority’s opinion. These paragraphs are, at least in spirit, inconsistent with the Supreme Court’s opinion in Christianburg Garment Co. v. EEOC, 434 U.S. 412 , 98 S.Ct. 694 , 54 L.Ed.2d 648 (1978). They are also unnecessary to the resolution of this case.

In Ckristianburg, the Supreme Court found the intent of Congress to be twofold:

Christianburg, 434 U.S. at 420 , 98 S.Ct. at 700 (emphasis added) (quoting Grubbs v. Butz, 548 F.2d 973, 975 (D.C.Cir.1976)). See also Christianburg, 434 U.S. at 419 , 98 S.Ct. at 699 (rejecting an argument limiting the awarding of fees to a defendant only in cases where the “plaintiff was motivated by bad faith in bringing the action”).

While a prevailing defendant will be entitled to fees only when the district court in the exercise of its discretion finds that the plaintiff’s claim was without foundation, Christianburg, 434 U.S. at 422 , 98 S.Ct. at 700 , there is no support in Christianburg, nor does the majority cite any other authority, for the proposition that “[o]nly in exceptional cases did Congress intend that defendants be awarded attorney’s fees under Title VII.” See ante at 848. Whenever the district court finds that the plaintiff has brought a “frivolous, unreasonable, or groundless” suit, the court may assess fees. Christianburg, 434 U.S. at 422 , 98 S.Ct. at 701 . No other “exceptional” circumstances need apply.

Finally, whether a “frivolous” plaintiff appears in propria persona or not is irrelevant. So too, it is immaterial which “type” of Title VII case the plaintiff brings. Nor does § 706(k) as interpreted by the Supreme Court warrant any consideration of the length of the trial or other proceedings. A plaintiff who drags a frivolous suit through months of discovery, exacerbating the defendant’s costs, should not be freed from the strictures of § 706(k), even if the case never goes to trial. Such plaintiffs ought to be “chilled.”