We wrote a post on November 21st entitled “Is There A Duty To Mitigate Emotional Damages?”

In the post 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.”

“Ooh You Are A Smooth Talker. You Are… You Are!” we wrote jokingly on December 4th, in response to a reader (a lawyer) who, paraphrasing Mona Lisa Vito (Vinny Gambini’s girlfriend in My Cousin Vinny [played by Marisa Tomei]), said that ‘The EEOC is wrong.”

Another lawyer commented about our original November post.

Jon Green, an attorney in the NYC area:

“I found the comments by defense counsel both amusing and off-point. For example, one Atlanta defense attorney says that you can’t sue for emotional distress and then “fly to Vegas”. I assume that this comment was tongue in cheek since flying to Vegas could be mitigating emotional distress damages if the plaintiff’s mood is lightened. (Obviously, what happened in Vegas can’t stay in Vegas when it comes to an emotional distress claim.)

Las vegas : impersonator man in front of Welcome to Fabulous Las Vegas sign on the strip

But on the other hand, flying to Vegas could lead to huge gambling losses that was fueled by the emotions of having to make up for lost income through the loss of a job; the losses themselves may not be compensable unless there is a psychological expert testifying that the emotional distress was a proximate cause of the gambling losses. Or flying to Vegas could be to look for other work. And so forth.

 In any event, I don’t think it makes a difference whether there is a mitigation defense for emotional distress. Mitigation would or could entail seeing a therapist, diligently looking for work, getting job training or taking steps to feel connected to others. But since the plaintiff has the burden of proving emotional distress, if she/he didn’t take these steps, this is an issue that a jury would decide anyway. (For example, a plaintiff can claim that they cannot afford therapy could trigger discovery of plaintiff’s assets, etc etc.). From a plaintiff’s attorney point of view, why should defendant’s counsel bother.

My two cents.”