Another excellent post from our colleague Brandon Underwood:

A good rule of thumb that trial and appellate lawyers learn early in their careers is that you generally forfeit arguments you don’t make. Suppose that a defendant takes a case to trial and loses, only to realize in briefing its appeal that the plaintiff’s lawsuit

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)