![]() Certainly, employer #1 is entitled to have the wages earned during July and August subtracted from any back pay award pursuant to black letter employment law. Suppose, then, that the employee is fired for cause by employer # 2 in August 2015 and sues employer #1 for wrongful termination in January 2016, alleging back pay damages for all of 2015. Claimant then looks for a new job and obtains a position with employer # 2 in July 2015 that is substantially equivalent to his previous job. Suppose an employee is discriminated against and discharged by employer #1 in January 2015. These questions are addressed in the sections below and implicated in the following factual scenario. (3) What is the practical effect to a Title VII back pay award when a claimant is subsequently terminated for cause? (2) If so, what level of conduct by the claimant is required in order to meet the “reasonable diligence” standard in maintaining subsequent employment? (1) Does a Title VII claimant alleging wrongful termination have a duty to use reasonable diligence to maintain substantially equivalent employment after it has been obtained? This understanding thus leads to the three main questions which are the central focus of this article: ![]() 5 As a consequence, “ince only actual losses should be made good, it seems fair that deductions should be made not only for actual earnings by the worker but also for losses which he willfully incurred.” 6 Logically, then, any amounts the claimant failed to earn as a result of not using reasonable diligence must be credited to the employer. Title VII’s remedial provision relating to back pay is equitable in nature and seeks to restore what the claimant lost as a result of the discriminatory discharge. Supreme Court has interpreted this section of Title VII to “require the claimant to use reasonable diligence in finding other suitable employment.” 3 Although a claimant need not seek or accept employment that is demeaning or constitutes a demotion, he or she will forfeit the right to back pay if a “substantially equivalent” job is refused. Thus, in cases where a plaintiff alleging wrongful termination is discharged by an interim employer, defense counsel should investigate not only the facts surrounding the primary claim, but also those of any subsequent discharge.Ī Claimant’s Duty to Minimize Damages under § 706(g) of Title VIIĪ Title VII claimant’s duty to mitigate damages derives from § 706(g), 2 where it states “nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” The statutory language cited thus provides that any amounts earned by a wrongfully terminated employee from subsequent employment act as a credit toward the employer in calculating the claimant’s backpay award. Unfortunately, the body of case law regarding the effect of subsequent terminations on back pay awards is relatively small, but several federal appellate courts have indeed held that employment plaintiffs have a duty to use reasonable diligence in maintaining interim employment. This article provides defense counsel with a litigation tool when the issue of damages mitigation arises in factually similar employment cases. Under these circumstances, the employer may still argue that the value of those interim earnings should be deducted from any back pay award because the claimant unreasonably failed to maintain his or her interim job. In particular, a more nuanced articulation of the “mitigation of damages” defense becomes necessary if the plaintiff did obtain replacement employment but was subsequently fired from that position for cause. However, the failure to seek replacement employment is not the only context in which the defense may be raised. In other words, a discharged employee, even when terminated on discriminatory grounds, may not sit back and watch his or her purported damages accrue rather than seek a new job. Usually, this defense alleges that the plaintiff failed to make reasonable efforts to secure replacement employment after being discharged. When litigating employment cases involving a Title VII 1 claimant’s allegations that he or she was wrongfully terminated, one of the key defenses at an When litigating When litigating employment cases involving a Title VII claimant’s allegations that he or she was wrongfully terminated, one of the key defenses at an employer’s disposal is that the plaintiff/former employee failed to mitigate his or her damages.
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