Duty to Mitigate Damages in Employment Discrimination and Termination Cases: Challenges at Trial

Description

Defense counsel must weigh the concerns of conceding liability at trial by discussing damages at all, against the need to give the jury tools to adequately value the case if they find for the plaintiff. Meanwhile, plaintiff's counsel must weigh during the trial the need to show the plaintiff tried to mitigate against the likelihood that the jury will factor in the plaintiff's replacement compensation to reduce the ultimate verdict.

Like all other plaintiffs, employment plaintiffs must mitigate damages. In the context of post-termination pay, that means finding a new job. Jury instructions make it crystal clear that the defendant bears the burden of proving that the plaintiff failed to mitigate their damages adequately. The defendant must do so by showing that there were available positions for the plaintiff that were comparable in duties and pay. Producing evidence of opportunities immediately post-termination can be challenging when the case has dragged on for years. Expert testimony can play a role in such proof.

Plaintiffs must be coached to keep records of all job searches--and rejected opportunities--and counsel must learn how to present them at trial in an admissible format to share with the jury.

Listen as this panel of experienced employment law attorneys discusses this oft-neglected area of employment law which can have huge implications on your jury verdict. The panel will review the salient legal points and provide practical guidance for pre-claim activity, during discovery, and proof at trial.