As a general principle, an employee alleging employment discrimination has an affirmative obligation to mitigate his or her lost wages by making a good faith effort to secure alternative employment. The employer however, bears the burden of proving that the employee failed to make such an effort. A recent decision from the D.C. district court reminds us that the employer’s burden is not as onerous as it sounds.
In Conn v. American National Red Cross, the plaintiff claimed that her employment was terminated because of her age and disability. The Red Cross raised Conn’s alleged failure to mitigate her damages as an affirmative defense. Conn claimed that the Red Cross was required to prove both that (1) she failed to conduct a good-faith job search; and (2) suitably equivalent employment existed. While Conn correctly articulated this general rule regarding mitigation, most federal appellate courts maintain an exception to the rule that relieves an employer from proving the suitable alternative employment prong if they can show that the plaintiff failed to make a good faith search. Relying on this exception, the Court rejected Conn’s argument and held that if the Red Cross could establish that Conn did not conduct a good faith job search as an initial matter, then it was not required to also prove that suitable alternative employment existed and Conn would not be entitled to any back pay (i.e., lost salary). The Court went onto find that it would be up to the jury to decide whether Conn “gave it the old college try ” in making a good faith effort to find new employment.
Red Cross also made the alternate argument that Conn’s back pay should be cut off at the time she voluntarily abandoned her job search. Conn said she eventually stopped looking for a job because none existed. The Court sent this issue to the jury as well saying that Conn’s decision to stop searching for jobs did not cut off her damages as a matter of law; instead, it was merely another fact for the jury to consider in deciding whether she satisfied her mitigation obligation.
Because of the potential for substantial back pay awards in employment termination cases, employers should take thorough discovery, such as interrogatories, document requests, requests for admission, or deposition testimony, to determine the nature of efforts taken by a terminated employee to find new employment. Discovery requests, for example, which ask the plaintiff to identify every job opportunity applied for and all sources of income received since the plaintiff’s employment was terminated, can help demonstrate that the plaintiff failed to undertake a good faith job search and thereby eliminate the employer’s burden of also having to show the availability of comparable work. Where possible, employers should also consider engaging an appropriate expert witness to address whether suitable alternative employment existed. This may include engagement of vocational rehabilitation professors or counselors, Human Resources consultants, labor economists or even headhunters.