The best outcome to a discrimination lawsuit from the employer’s perspective is to win outright—for the judge or jury to find that the employer did not unlawfully discriminate. But, even if you lose, there is a “Plan B” defense—the failure to mitigate damages.   An employee who is terminated (or not hired in the first place) can have his back-pay award reduced or eliminated altogether if he did not make reasonable efforts to get another job. 

But, asserting a failure to mitigate defense and actually proving it are two very different things, as shown in the recent Colorado case, EEOC v. Beverage Distributors, LLC (12/9/13 D. Colo.). The jury awarded the plaintiff over $132,000 in back pay after finding the employer discriminated on the basis of the plaintiff’s disability.   But, the jury then reduced the award by $102,000 because it found the plaintiff failed to mitigate his damages.   Plan B was a success, or so it seemed.

After the judgment entry, EEOC filed a motion asking the court to award the back pay the jury gave without the reduction for failure to mitigation.   EEOC argued the employer did not present evidence as a matter of law to prove failure to mitigate. In an unusual move, the trial judge agreed, vacated the jury’s award, and entered a judgment for the full $132,000 in back pay.

The evidence showed Beverage Distributors rescinded a job offer for a night warehouse loader when it learned the plaintiff was legally blind. The plaintiff found another job within a week at a landscaping company, but the pay was less than he would have earned at Beverage Distributors.   The employer argued the plaintiff should have made more effort to secure a job with pay comparable to the one he would have had.   As evidence, the employer presented expert testimony about various employment statistics in the geographic area. For example, the evidence showed there were 10,000 drivers’ helper or storage-labor jobs; that the unemployment rate in the area was lower than the national average; and that unskilled laborers with plaintiff’s experience typically find a job paying the median wage within a certain number of weeks. 

The court held this evidence was not enough to allow the jury to find the plaintiff failed to mitigate.   That a certain number of positions existed in the labor market does not allow one to conclude the positions were available to the plaintiff. The court was looking for evidence there were actual openings for jobs paying comparable wages, for which the plaintiff was qualified, within a reasonable commuting distance.   General statistical evidence about the labor market was simply too vague to allow an inference that this particular person could have found a higher paying job.

The lesson for employers: if a plaintiff actually gets another job, it will be difficult to prove failure to mitigate.   General assertions that the plaintiff could or should have tried harder probably won’t cut it. You need evidence of specific job openings, for which the plaintiff is qualified, at particular employers that the plaintiff should have known about, but failed to pursue.   Obtaining this type of evidence that is not speculative is likely to be a challenge.