We wrote a post the other day entitled “Is There A Duty To Mitigate Emotional Damages?”

In it we cited a case where a 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.”

One of our lawyer-readers begged to differ.

William Deveney, from the Atlanta area wrote:

“To paraphrase Mona Lisa Vito (Vinny Gambini’s girlfriend in My Cousin Vinny [played by Marisa Tomei]), ‘The EEOC is wrong.”

“There has long been a general duty recognized under law that a victim is required to mitigate damages. The Supreme Court cited McCormick’s 1935 treatise on damages (more specifically, the entire chapter addressing the Avoidable Consequences doctrine) in EEOC v. Ford Motor Co., in which the Court rejected the EEOC’s position regarding whether an employee’s failure to accept what might be reasonably described as an employer’s half-measures nonetheless constituted a failure to mitigate back pay.

The Court cited that same theory again in Faragher “import[ing] from the general theory of damages, that a victim has a duty ‘to use such means are reasonable under the circumstances to avoid or minimize the damages’ that result from violations of the statute.”

The Court cited Ford Motor Co., as supporting this statement, and again cited McCormick’s treatise. McCormick’s treatise specifically addresses personal injuries. It may be difficult to show a failure to mitigate garden-variety emotional distress damages, but emotional distress damages are not necessarily limited to garden variety claims.

To state as a general principle that mitigation of emotional distress is not required at all runs counter to general damages principles that the Supreme Court has adopted in Title VII cases.”

[Editor’s Aside:  Our response to William is to quote the lovely Mona verbatim:  “Ooh you are a smooth talker.  You are… you are!”].