Hunton Employment & Labor Perspectives

In the current economy, with unemployment over 9% and multiple applicants for every position, an out-of-work individual should be doing everything possible to get a new job, right? Perhaps, but not for purposes of “mitigation” under fair employment statutes.

On August 11, 2011, the U.S. District Court for the Western District of New York ruled that a fired employee alleging discriminatory discharge under Title VII had no obligation to enroll in vocational training in order to mitigate his damages from the alleged discrimination. EEOC v. Dresser Rand Co., No. 04-CV-66300, 2011 U.S. Dist. LEXIS 89466 (Aug. 11, 2011).

Under Title VII, as under most other civil rights and fair employment statutes, plaintiffs alleging discriminatory discharge must “mitigate,” or limit, their economic damages by making diligent efforts to find subsequent work. The failure to mitigate is an affirmative defense, however. The defendant bears the burden to show a plaintiff has not been reasonably diligent in searching for comparable employment.

In Dresser Rand, a machinist was fired in December 2002 for insubordination, after he refused to perform work that he believed conflicted with his Jehovah’s Witness religion. He did not find a new job until 2004. When he filed suit over his discharge, the defendant employer filed a partial motion for summary judgment, asking the court to limit the plaintiff’s damages. The basis for the motion was that the employee had the opportunity to seek retraining on a different type of machine, “numerical controlled manufacturing machines” (called “CNC training”), but elected to seek only manual machinist jobs instead. The defendant submitted an expert report stating the employee “would have easily obtained employment as a CNC machinist by August 2003 had he taken advantage of available vocational retraining in the field of computer numerical controlled manufacturing.”  

The court granted the plaintiff’s motion to strike the expert testimony, finding the testimony irrelevant to the question of mitigation, since the employee was not under any obligation to pursue CNC training. The court noted “the duty to mitigate is not onerous, and an employee is not required to go into another line of work if substantially equivalent employment is unavailable.”

Significance To Employers

In the current economy, unemployment is obviously a significant issue. Companies facing wrongful discharge lawsuits thus have more interest than ever in raising a failure-to-mitigate defense, to minimize the impact of a discharged employee’s long-term unemployment. This may be a difficult defense to establish, however, if fired employees need not engage in any vocational training to expand the range of jobs available. Back pay and front pay awards may be higher as a result.