The only state law which addresses the
issue of mitigation in the context of employment discrimination is
Burnside v. Simpson Paper Company, 66 Wn. App. 510, 529-530 (1992)
affirmed on other grounds 123 Wn.2d 93 (1994). In Burnside, the
court partially granted plaintiff's motion for a directed verdict on the
issue of mitigation. Id. at 529.
In relevant part
Burnside confirmed that mitigation of damages within the context
of employment discrimination is an affirmative defense. Id. at
529. The Court in Burnside held that "[t]o satisfy its burden,
the defendant must show that there were suitable positions available and
that the plaintiff failed to use reasonable care and diligence in seeking
them." Id. If there exist no suitable alternatives, the
exercise of reasonable diligence to find suitable alternatives would be
a useless act. See also, Sias v. City Demonstration
Agency, 588 F.2d 692, 696 (9th Cir. 1978)(the defendant must
establish that (1) plaintiff failed to exercise reasonable diligence
and (2) there were substantially similar positions available for
which plaintiff could have applied); Cassino v. Reichhold
Chemical, 817 F.2d 1338, 1345 (9th Cir. 1987)("The defendant bears
the burden of showing that there were suitable positions available
and that the plaintiff failed to use reasonable care in seeking
them."); Kaplan v. Intern. Alliance of Theatrical, 525 F.2d 1354,
1363 (9th Cir. 1975)(Defendant "has the burden of proving the [plaintiff]
could have mitigated").
In Burnside the court found that
while Burnside made no concerted effort to find comparable employment,
there was no evidence that such comparable employment existed.
Id. at 530. It was for that reason that plaintiff's partial
motion for a directed verdict was granted. The court also adopted the
jury's finding that Burnside exercised reasonable diligence by accepting
self employment. Id.
1. Requirement of suitable
In order for the defendant to meet its burden of establishing the presence of suitable positions the defendant must offer admissible evidence of a job "substantially equivalent" to the job lost by plaintiff. Jackson v. Shell Oil Co., 702 F.2d 197, 202 (9th Cir. 1983). In determining the type of positions which are suitable or substantially equivalent to the position lost by the employee, a plaintiff does not need to accept a position which is not equal in terms of status, duties, responsibilities, working conditions, and opportunities for advancement. Ford Motor Co. v. EEOC, 485 U.S. 219, 231-232, 102 S.Ct. 3057, 3065-3066, 73 L.Ed.2d 721 (1982). In Rasimas v. Michigan Department of Health, 714 F.2d 614, 624 (6th Cir. 1983)(cited in Burnside) the court held that substantial equivalent requires virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status. A wrongfully terminated employee does not have to accept a demotion for the purpose of mitigation. See also, Williams v. Albemarle BoardŌ, 508 F.2d 1242 (4th Cir. 1974) (en banc)(A discharged principal was not required to accept a teaching position). In order to satisfy the mitigation requirement, a claimant need not go into another line of work, accept a demotion, or take a demeaning position. Ford Motor Co. v. EEOC, 102 S.Ct. at 3065.
2. Self Employment
is an Acceptable Method of Mitigation.
To mitigate damages a discharged employee is not required to seek employment similar in nature to the work he performed for his former employer. Self employment constitutes a form of reasonable diligence. Burnside, supra at 529-530. See also, Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461, 1468 (5th Cir. 1989)("[a] plaintiff's decision to become self-employed, alone, does not indicate a lack of reasonable diligence."). In Wangness v. Watertown School Dist., 541 F.Supp. 332 (S.D. 1982) the Court considered the mitigation of damages issue involving an unlawfully discharged schoolteacher. There, the plaintiff gave up the teaching profession upon his illegal discharge and elected to pursue a career as a self-employed carpenter. The defendant argued that because the plaintiff chose not to return to the teaching profession for a period for five years, he should be denied back pay for that period. The Court rejected the defendant's argument and held that a plaintiff is not required to seek "like" employment in order to mitigate damages.
3. Requirement of Reasonable Diligence.
The defendant's burden is not satisfied merely by showing that the plaintiff failed to do all that he could have done in order to mitigate damages. In Burnside the court recognized that a claimant is not held to the highest standard of diligence and is not compelled to be successful. Id. at 530. The range of reasonable conduct is broad, and the injured plaintiff must be given the benefit of every doubt in assessing his or her conduct. EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 925 (NY 1976); Rasimas v. Michigan Depart. of Health, 714 F.2d 614, 624 (6th Cir. 1983)("The claimant's burden is not onerous, and does not require him to be successful in mitigation.") To be reasonable, "older claimants need not exert as much effort as younger claimants."Id.at 624-625.