We have written little about the requirement in Title VII (and the other anti-discrimination  laws) that a plaintiff-employee has a duty to mitigate damages.  This may be because many lawyers backburner this issue in their zeal to deal with the merits of a case, or perhaps they ignore (repress?) this issue because it presupposes that the plaintiff has or will prevail.

Whatever the reason, it can be a powerful weapon for employers to substantially reduce damages if they can show that the employee has failed in this duty.  And oftentimes an expert can be extremely helpful.

What is the duty to mitigate?

It is an old legal concept that a plaintiff may not recover damages for any harm that she could have avoided or minimized with reasonable effort.  In employment law, it is generally the rule that an employee who sues for what may be referred to broadly as “wrongful discharge” (although this precise cause of action is not recognized in NY) must show that she has taken all reasonable steps to minimize damages by seeking other employment, or else her damages may be reduced accordingly.

The EEOC has stated in a published Guidance that “if the respondent [employer] can prove that the complaining party [employee] failed to exercise reasonable diligence to mitigate his/her damages and could have avoided or minimized such damages with reasonable effort, the damages may be reduced accordingly.”

However, it is the employer’s burden to show that the employee failed to exercise reasonable diligence to mitigate her damages, and as the EEOC has put it, parsing the relevant caselaw:

— the employer has the burden of showing that the plaintiff failed to make reasonable efforts to find work to mitigate her damages when seeking backpay;

—  the burden is on the employer to prove, as an affirmative defense, that the employee failed to mitigate damages when seeking lost wages; and

—  the employer has the burden of producing sufficient evidence to establish the amount of interim earnings or lack of diligence in mitigating damages on the part of the plaintiff.

The key when it comes to actual litigation is the notion that the plaintiff has the duty to “mitigate” lost wages by using “reasonable diligence” to seek “substantially equivalent” employment.  But what does that mean?  What is substantially equivalent” employment, and what is “reasonable” when it comes to “diligence” in job hunting, expecially in this iffy economy?

Does a plaintiff have to take any job?  The first job offered?  Any job in her “field?”  Any job in a related “field?”

Does a plaintiff have to show a list of hundreds of prospective employers which she contacted?  And what amount of effort must she show in her “diligent” job search — must she show hours of effort for each job applied for?

As noted above, a lot of lawyers pay little attention to these thorny issues, assuming that the answers to these questions are obvious.  Not so – and the payoff for focusing attention on these issues can be enormous for the client.

We shall examine this in greater depth in a follow-up post or two.