Title VII

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Bloomberg BNA is out with a news story about a recent case filed in federal court in Georgia, which poses an interesting question:  does Title VII protect an employee on the basis of his or her spouse being a member of a different race from the employee?  Among the Circuit Courts of Appeals that have tackled this question, the answer is yes.  We’ll get to the reason why momentarily, but first, let’s take a look at the new case in Georgia:

Costco Wholesale Corp. permitted discrimination and harassment of a black female worker married to a white man, according to a federal lawsuit filed in Georgia . . .

Levara Speight brought associational discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Costco, in addition to race bias, harassment and retaliation claims.

She alleged that a supervisor and a co-worker, who are both black, began to harass her after they discovered that her husband is white. She claimed that she was told, “You’re not black,” that she acted “like a 16-year-old white girl,” and that she liked “white people music,” such as Billy Joel. Speight, a pharmacy technician, said she was demoted to a cashier position after she complained about the harassment.

 

This kind of claim is known as associational race discrimination and is based on a quite simple concept.  A claim of this kind is premised on the idea that discriminating against an employee because the employee’s spouse is of a different race necessarily implicates the employee’s own race. Here, the plaintiff is arguing that she was subjected to race-based harassment because of her interracial association, in that she (an African-American woman) is married to a man of a different race (Caucasian).  Thus, the discrimination is necessarily based on her own race, in addition to that of her husband.  (If this concept sounds familiar, you may have read about it in the context of LGBT employees pursuing sex discrimination claims.)

While claims of this sort are not particularly common, they can be viable, depending on the circumstances.  Associational race discrimination cases also raise an important follow-up question:  what kind of association is required to support a claim?  While spousal relationships have been recognized as sufficient by courts that have considered the issue, the limits of an associational relationship remain an open question in many jurisdictions.

To learn more about this case and this type of claim, I encourage you to read the whole article, for which (shameless plug alert) I provided commentary.

Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin.   The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.

What’s National Origin?

Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.”  29 C.F.R. § 1606.1.

The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations,  including:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

So What Does This Mean for the Workplace?

At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts.  In addition,  since this guidance has not yet been finalized, revisions remain a possibility.  That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.

Some noteworthy issues raised in the proposed guidance include:

  • Accents.  Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked.  While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
  • Word-of-Mouth Recruiting.  Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
  • Social Security Number (SSN) Screening.  Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
  • Customer Preference.  Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII.  The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
  • Job Segregation.  An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
  • Perceived National Origin.  It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
  • English-Only Rules.  Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity.  The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.

These items are just a sampling of the information contained in the EEOC’s proposed guidance update.  The full document is available here.

 

 

23337822_sToday the U.S. Supreme Court reversed a decision by the Tenth Circuit Court of Appeals that had previously held that Abercrombie could not be held liable for not accommodating an applicant who wore a head scarf to her interview but never mentioned her Muslim faith.  The Tenth Circuit had accepted Abercrombie’s argument that the mere fact that she wore the hijab to the interview did not mean it was aware that she needed an accommodation of Abercrombie’s “Look Policy.”

The Tenth Circuit had held that where an accommodation is requested for religious reasons, an employer must not only be aware of the need for an accommodation but also that it was due to a particular religious faith.

In today’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court noted that knowledge of the need for an accommodation is not necessary but simply must demonstrate that an applicant’s need for an accommodation was a motivating factor in the employer’s decision.  This may seem confusing without reading the opinion in full.

I mean, how can an accommodation be a motivating factor if the employer did not know of the need for an accommodation?

Once you dig into the Court’s reasoning, the decision is actually more common sense than it appears on its face.  In short, whether an employee knows of a need for accommodation or simply assumes that one might be necessary, if the desire to avoid accommodating that practice is a motivating factor in not hiring the applicant, then that is a violation of Title VII.

To understand the Court’s decision, a brief review of the facts is helpful.   Samantha Elauf applied for a position with Abercrombie.  At the interview, Ms. Elauf wore a head scarf.  There was no discussion during the interview about the head scarf or whether she wore it for religious reasons.  After the interview, the manager who interviewed her, Heather Cooke, was concerned that the head scarf violated Abercrombie’s “Look Policy” which prohibited the wearing of caps.  When Ms. Cooke consulted with the District Manager, she advised that she thought that Ms. Elauf wore the head scarf for religious reasons.  The District Manager advised that the head scarf would conflict with the Look Policy and Ms. Elauf was then rejected for the position.

In its analysis the Supreme Court noted that the disparate treatment provision of Title VII forbids employers from failing to hire an applicant because of religion. Thus, the provision prevents religion from being a motivating factor in an employer’s decision not to hire an applicant.

When viewed in this light, today’s decision is not so different from cases interpreting the disability portions of Title VII.  For example, if an applicant who came into an interview for a position involving physical labor had a limp, the employer assumed because of the limp that the employee would need accommodations, and the employer did not want to create light duty positions so it rejected the applicant, it is not hard to see how this would be disability discrimination due to the assumption alone.

In this case, Abercrombie assumed (correctly) that Ms. Elauf wore the head scarf for religious reasons and as such would need an accommodation from its Look Policy.  Since Abercrombie’s sole reason for not hiring her was that it did not want to create an exception to the Look Policy, Ms. Elauf could show that her need for an accommodation was a motivating factor in the decision not to hire her even though she had never specifically asked for an accommodation.

Today’s decision is not so broad that it means that not having knowledge of a need for an accommodation may never be a defense.  If the employer has neither knowledge of nor an assumption that a religious practice requires an accommodation, an employer may still be able to raise a defense to a failure to accommodate claim.  For example, if an employee comes to a manager and simply requests time off without giving a reason why, it may be possible to argue that the cannot show that the denial of the time off was on account of his or her religion.

Employers should keep this decision in the backs of their minds when evaluating such requests.  If, for example, an employee is telling you that he or she cannot work any Friday after 4 pm, then a prudent employer should at least ask why before denying the request.  It is possible that the employee, who is Jewish, is making the request so that he or she can observe the Sabbath, or that the employee has a second part-time job that is scheduled for every Friday evening.  In the first scenario, the employer will have to evaluate whether it can reasonably accommodate the employer.

8081950_sSometimes when I counsel employers they ask why they cannot just take an ostrich approach, i.e., stick their head in the sand and not go looking for issues.  The problem with that approach is that, given my example above, it is not hard to imagine that an employee would claim that the manager was aware that he or she was Jewish and thus, should have assumed that the request was related to an observance of the Sabbath.  That then becomes a factual issue that is likely not going to get resolved on summary judgment.

Punitive damages are generally difficult to obtain.  And under Supreme Court precedent, punitive damages greater than ten times an award of compensatory damages is generally considered “grossly excessive,” raises due process issues, and is likely to be struck down or reduced by a court.

That is what makes a new decision from a federal appeals court so significant – in a Title VII case in which plaintiff recovered $1 in “nominal” damages the Court awarded plaintiff the full Title VII cap of $300,000 in punitive damages.  Three hundred thousand times the compensatory damages award!

See Arizona v. ASARCO LLC, 2014 BL 346185

money damages : Piggy bank Stock Photo

After an eight-day trial in a sexual harassment case, the jury awarded plaintiff no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitive damages.  The Court applied “the due process analysis in [the US Supreme Court’s] BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), [and] concluded the punitive damages award was not unconstitutional but, given the $300,000 cap on compensatory and punitive damages found in § 1981a(b)(3)(D)[the Title VII damages statute], reduced the award to $300,000.”

The Court examined the elements set forth in the Gore analysis as to punitive damages:  “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”

After this analysis, the Court held in the case that:

“there is significant and compelling evidence that management was aware of, and did little to resolve, lewd, inappropriate, and sexually aggressive behavior directed to [plaintiff]; sexually explicit, targeted pictures of [plaintiff] on the walls of the bathroom rented specifically for her use; and overly aggressive management and criticism of [plaintiff]  by supervisors. [Plaintiff]  complained to management multiple times. The sexually explicit graffiti in the bathroom was not removed while she was working in the filter plant.  As the district court correctly noted, to the extent ASARCO did have an antidiscrimination or harassment policy, the existence of such a policy alone is not enough to save it. …

Further, the award is consistent with, and in some cases smaller than, punitive damages awards in other Title VII and 42 U.S.C. § 1981 cases we have considered.  … “

“In sum,” the Court stated, “we conclude that punitive damages awards conferred under § 1981a comport with due process. The statute provides specific notice of proscribed conduct. It specifies the maximum amount of damages that can be awarded, and incorporates both specified compensatory and punitive damages within the cap. The $300,000 dollar amount of the cap provides an extremely limited potential for recovery, and has not changed, nor been adjusted for inflation, since its adoption in 1991. There is nothing in our consideration of the Gore factors that would alter that conclusion. The record supports the district court’s conclusion that the punitive award was made in conformance with the statute and was not otherwise in violation of due process.”

money damages : A fist full of paper money money, dollars, smashing through the background, or wall.

Takeaway

Employers must be aware that under the federal anti-discrimination laws, even if a plaintiff is awarded a truly nominal sum after trial, the employer still may be socked with not only substantial punitive damages, but also reasonable attorneys fees.   All in all not a happy result.

Better to preemptively train your managers and employees well, have a good, solid (and updated) employment manual, and lead from the top down in terms of respect and zero tolerance in the workplace.

 

 

 

Reorganization, reduction in force (“RIF”), merger of departments – these are only a few reasons which employers give when firing an employee – and which is frequently alleged to be — and found to be a pretext in violation of Title VII, the ADEA or other anti-discrimination laws.

And also setting a performance bar too high to achieve, intending the employee to fail.  

All employment lawyers – both employee and management side – have encountered these scenarios.

age discrimination : Concept image depicting employment ageism and discrimination for people over fifty. Selective focus on the road text. Copy space.

A new Age Discrimination in Employment Act (“ADEA”) case filed by the EEOC illustrates the nature of such an alleged pretext.  The EEOC claims that Blinded Veterans Association (“BVA”), a non-profit Washington, D.C.-based service provider to blind veterans fired two longstanding employees because of their age.   (NB:  Another example of the EEOC targeting organizations “whose charter is to help people” or “who should know better.”  Readers are hopefully familiar with our many such posts, usually involving the ADA).

Link:  http://www.eeoc.gov/eeoc/newsroom/release/12-12-14.cfm

One 76-year old employee with 34 years tenure was asked repeatedly when he would retire.  When he said that he had no such plans, BVA (according to the EEOC) “announced that it was ‘reclassifying’ certain jobs, including [plaintiff’s], and that he needed to compete for one of the newly-created national field service officer positions if he wanted to remain employed by BVA.  In order to compete for one of the newly created jobs, BVA imposed on Martinez arbitrary and unrealistic requirements.”

A “bar too high to reach,” which led inexorably (and intentionally) to failure, is what this alleged “pretext” might be called, if proved true.

unfair race : You are pushing a flat cube while your competition is pushing spheres marked Them, symbolizing an unfair advantage others have in a race or the game of life, preventing you from success and achiving goals Stock Photo

The second employee, 70 years’ old with 15 years tenure, was asked repeatedly “When are you going to retire?” and “When are you moving to Florida?” 

Refreshing, don’t you think?  At least with the second employee the employer was honest in its age animus — thereby providing the employee direct evidence of age discrimination, without the messy and complicated pretext.

Takeaway

An EEOC attorney said it best:  “Targeting older workers under the pretext of a reorganization doesn’t fool anyone – it’s clearly age discrimination, and clearly unlawful.” 

 

A newly filed EEOC charge alleges that The Holy Family Catholic Community in Inverness, Ill fired its 17-year music director when the director announced on Facebook that he had just become an engaged to his male partner.  This, according to the Portland Press Herald.

See: http://www.pressherald.com/2014/12/06/music-director-fired-by-church-files-claim-for-discrimination/

gay weddings : Closeup of a gay couple holding hands, wearing a wedding ring. Couple is a hispanic man and a caucasian man.

The director, who alleges sex, sexual orientation and marital status discrimination, stated that he was told that “his same-sex relationship violated the tenets of the Roman Catholic Church.”

The Archdiocese of Chicago declined comment.

An Earlier Case

This case is strikingly similar to one we wrote about last February.

The Boston Globe and Boston.com reported what then may have been a legal first – a case filed with the Massachusetts Commission Against Discrimination (MCAD) against a religiously affiliated college prep school by a gay man who claimed that his offer of employment was withdrawn after the school discovered that he listed a “husband” as his emergency contact.

The applicant was offered a job as food services director, but claimed that a school official said that “the Catholic religion doesn’t recognize same-sex marriage, and that was her excuse.  She said, ‘We cannot hire you.’  If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job. All I did was fill out the form honestly.”

He alleged sex and sexual orientation discrimination.

His attorney said that “There is a balance between important values, which are religious liberties, and discriminatory practices. This is a job that has nothing to do with religion . . . and this weighs toward discrimination.  Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination.”

The Ministerial Exception

Both cases involve what is called the “ministerial exception.”

On January 11, 2012, we reported about a significant First Amendment religious freedom decision involving the “ministerial exception” which was decided that day by the Supreme Court, Hosanna-Tabor Church v. Equal Employment Opportunity Commission.

The Court had before it a teacher in a religious institution who taught both secular subjects and a class in religion. When she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination. Her case involved a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws.

At issue before the Court was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.”

The unanimous Court held that the religious institution must be free to choose its own ministers without state involvement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

Non-Ministerial Duties

In a post in June 2013, we reported that the Roman Catholic Archdiocese of Cincinnati fired a non-Catholic computer teacher in a parochial school allegedly for violating an employment contract requiring her “to conform with Catholic doctrine, which considers pregnancy out of wedlock through artificial means ‘gravely immoral.’”

Did the ministerial exception apply to her and thus permit her firing?

Plaintiff was a female non-Catholic, gay, unmarried parochial school computer teacher. She claimed that she was fired for being pregnant and unmarried.  Prior to trial, the archdiocese lost a motion based upon the recognized “ministerial exception,” since although Plaintiff was a non-Catholic (and thus did not conform to “Catholic doctrine”) she taught only computer classes (and not, for example, religion classes) and was even barred under church rules from teaching religion to her elementary school students.

Therefore, since she did not have ministerial duties in teaching computer classes, the exception did not apply, and a federal jury in Ohio agreed with her and awarded her $171,000 in damages and back pay.

The anti-discrimination laws trumped religious considerations in that case.

With respect to the Massachusetts case in early 2014, a Boston lawyer, Nancy Shilepsky, was quoted as saying that “Our Supreme Judicial Court takes a serious look at issues involving religious liberty and at issues involving discrimination.  They are careful to try to strike the appropriate balance.”

Takeaway

“Balance” and “accommodation” are always key in analyzing religious discrimination cases, or cases where religious practices are involved.

 

There are two takeaways in today’s post.

First:  Beating a dead horse, we are constrained to remind health care and medical providers, yet again, that the EEOC continues to target you for ADA violations, or (in the case we will discuss), Title VII pregnancy violations; and

Second:  Be aware that Title VII, a “make whole” statute, provides for possible remedies that include, besides monetary awards, reinstatement.  Employers forget that.    

welcome back to work : Welcome back to school writen by chocolate pencils on line paper - realistic illustration with perspective and deep of field Stock Photo

This post is prompted by a an EEOC announcement of a consent decree in a Title VII lawsuit against an Illinois rehab center which provides short- and long- term medical and rehabilitation care located in suburban Bridgeview, Ill.   The EEOC alleged that the administrator of the center, after learning that a staff social worker was pregnant, reduced her hours and then fired her while she was on maternity leave. 

The consent decree “provides for reinstatement of the employee and monetary compensation in the form of a salary adjustment and repayment of nursing school loans.  In addition, the consent decree requires [the center] to report to the EEOC for the next two years on all employee complaints of pregnancy discrimination.  The company must also train all its employees at this location on the prevention and eradication of pregnancy discrimination.”

Link:  http://www.eeoc.gov/eeoc/newsroom/release/12-11-14.cfm.

“Reinstatement” (and a commensurate salary adjustment) is what we want to highlight about the consent decree, since it is not often that a company, or the former employee, agree to it (virtually all EEOC settlements and consent decrees contain provisions requiring anti-discrimination training, and EEOC oversight for a period of time – usually a couple of years).     

In any event, the EEOC noted that “Pregnancy discrimination remains a problem.  In too many workplaces too many times, employers are too quick to determine that the pregnant employee is the expendable employee.  But we’re pleased with the result here.  It includes getting the employee back on the job and positioned to progress in her career.”

 

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.”

Marisa Tomei : New York, NY, USA - April 18, 2014 Actress Marisa Tomei attends the 2014 Tribeca Film Festival Word Premiere Narrative

“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!”].

A couple of readers of our blog post yesterday relating to employer dress and grooming policies helpfully added a couple of points about an employer’s legitimate health and safety concerns, which we publish below.

Marc Brenman, a university instructor in Olympia, WA:

“There are also issues of mutable characteristics, and safety. And issues such as the fact that the ability to wear long hair doesn’t mean the employee can drag it thru the food.”

long hair men : Portrait of a smiling and handsome man giving a peace sign isolated on white

Peter Mangles, healthcare exec in Aberdeen, UK:

“This is a very interesting article about the rules and laws around discrimination and uniform and dress code policies. We have for many years in the health sector dictated to employees and staff about dress codes, uniforms and the wearing of jewelry at work. The wearing of rings, bangles and nail polish has for example been frowned upon and “banned” because of infection control and occupational health and safety reasons.

Shoe and uniform styles are often stipulated and enforced because of potential needle stick injuries and the exposure to blood and other bodily fluids. Depending on an individuals area of expertise other personal protective equipment (PPE) may be necessary that also affects what an individual may or may not wear.

The article was an interesting read in regards to the various precedents set in the courts in relation to grooming and uniform policy enforcement, something to mindful and aware of in the future.”

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.”