A federal court has just ruled (in what may be a case of first impression) that while Title VII explictly requires a plaintiff to mitigate back pay losses, Congress’s deliberate decision not to require such mitigation when it comes to emotional damages means that there is no such duty.

The ruling came in a case which we discussed last year.  The EEOC had sued a store for creating a sexually hostile work environment when it permitted an 84 year old retail customer to hang out near the employee time clock where he repeatedly groped three female employees – sometimes multiple times daily. One of the employees unsuccessfully complained to management to ban the customer from the store.  EEOC v. Fred Meyer Stores Inc. 

An EEOC attorney noted that “Title VII requires an employer to prevent known sexual harassment created by other employees or customers … regardless of the status of the harasser.”    (See our many discussions of harassment caused by non-employees which creates a hostile work environment.  Remember the foul mouthed parrot?).

In its latest ruling in that case the Court held that the EEOC was not required to prove that the groped female employees made reasonable efforts to limit their emotional harm caused by the alleged harassment.  “Congress’ deliberate decision to carve out this duty to mitigate damages [for back pay losses] clearly signifies that Congress did not intend to create a duty to mitigate all compensatory damages.  If Congress intended there to be a duty to mitigate all compensatory damages, it is illogical that it chose to single out the duty to mitigate back pay alone.”

So now we know that the duty to mitigate does not extend to emotional damages.