Your duty to mitigate damages in employment claims

An employee has a duty to seek similar employment

A lawyer who is evaluating your case will probably advise you that you have an obligation to mitigate your damages by diligently seeking substantially similar employment, and ask you about what mitigation efforts you have made.

This duty to mitigate damages is rooted in an ancient principle of law, and it requires you to use reasonable diligence in finding other suitable employment.

Although you need not go into another line of work, accept a demotion, or take a demeaning position, you forfeit your right to back pay if you refuse a job substantially equivalent to the one you were denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of backpay liability by unconditionally offering you the job you sought, and thereby providing you with an opportunity to minimize damages.

You should save evidence that demonstrates your mitigation efforts. This includes, for example, keeping copies of:

  • All versions of your resumes used for seeking jobs.
  • All letters and e-mails inquiring about jobs.
  • The classified sections of all newspapers searched for jobs.
  • Printouts from any online ads responded to.
  • Printouts from any searches conducted on internet career or job sites.
  • All correspondence with headhunters.
  • Notes regarding conversations with potential employers, headhunters, friends, family members and former coworkers regarding the job search.

A lawyer will be wary of accepting your case if you have not engaged in mitigation efforts. For example, one case held that even if the jury finds in favor of a plaintiff in a Family Medical Leave Act claim the court could still enter a judgment for the employer if the plaintiff employee had failed to mitigate his damages by seeking alternative employment.