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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.

The significant increase in the number of ADA-related lawsuits is the result of the ADAAA’s express directive that the definition of “disability” is to be construed in favor of “broad coverage.”  Not surprisingly, this change has encouraged Plaintiff’s attorneys regarding the prospects of successfully advancing a client’s ADA claim.  More specifically, the ADAAA (i) expands the definition of “disability”-- which, necessarily increases the number of individuals covered under the ADA -- and (ii) shifted the focus from whether an individual is disabled to whether and how that individual should be accommodated.  The ADAAA’s proposed implementing regulations, which are expected to become final later this summer, leaves no doubt that the operative question is no longer: Is an employee disabled?  Instead, the key question is now: What should an employer do to accommodate the employee’s disability?  For example, the proposed regulations create a list of “per se” physical and mental impairments that will “consistently” qualify as disabilities, such as cancer, blindness, deafness, epilepsy, HIV/AIDS and cerebral palsy.  Additionally, the proposed regulations clarify what it means for an impairment to “substantially limit” a major life activity or major bodily function and explain how to evaluate impairments when mitigating measures are used.   

In light of the significant increase in the number of ADA-related claims filed this year, and the prospect that these claims will increase, employers should be proactive in order to minimize potential exposure.  First, employers should conduct a policy review to ensure that their policies and practices are up-to-date with the ADAAA and its proposed regulations.  Second, employers should provide training for their human resources personnel as well as their frontline managers and supervisors regarding the ADAAA, particularly with respect to accommodation issues.  Finally, employers should review and update (or prepare new) job descriptions to ensure that they include all of the essential functions of a particular position.