Our post the other day about plaintiff/employee’s requirement of mitigating damages in employment discrimination cases drew some good comments, posted below.

But before we get to the comments, we wanted to discuss the duty to mitigate emotional damages.

emotional pain : young white woman sadly sitting with his head propped on his hands Stock Photo

Is There A Duty To Mitigate Emotional Damages?

We previously wrote about a case of apparent first impression in which a court held that that the duty to mitigate does not extend to emotional damages, because while Title VII explicitly 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 Court held that the EEOC was not required to prove that 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.”

And now to our readers:

Lisa York Bowman, an attorney in the Atlanta area:

“This is a great reminder. Plaintiffs often think they can sue and then fly to Vegas. On behalf of employers, I rely on this defense regularly.”

William Deveney, also an attorney in the Atlanta area:

“There’s also a good argument that the failure-to-mitigate damages goes to more than just a lost wages claim.

From Faragher: ‘If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.’”

Sheila Halliman, an attorney in the Dallas/Fort Worth area:

“It should be noted that mitigating damages can be helpful to the claimant too. It reveals the effort put forth by the victim and the in some cases the difficulty of obtaining similar or better suitable employment.”

Dr. Ralph Steel, a professor in the Dallas-Fort Worth area:

“Good post exchanges addressing mitigating damages and how it can be used to defend as well as put forth an employment discrimination case.”