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What does the failure to mitigate mean?

Top Employment Law Attorney Answer: The failure to mitigate damages occurs when an employee fails to seek reasonable ways to limit or reduce damages, including exercising reasonable diligence in seeking other suitable employment. Employees have a legal duty to take reasonable steps to limit or prevent damages. Many recently fired employees have the misconception that they can sit home doing nothing and their former employer will have to pay them until they would have retired. Not only is this wrong but failing to look for or take a new job may substantially reduce the value of a case.

Recently, our employment law attorneys have blogged about the economic damages of back pay and front pay that are available (along with other damages) as part of a wrongful termination claim under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). (Best Law Read: How Is Back Pay Calculated In Wrongful Termination Cases?; Can I Get Front Pay After Being Wrongfully Fired?). Even if these damages are established, an employer gets substantially reduced or even wholly block all economic damages if there is a failure to mitigate by the employee after being fired.

Do I have to look for a job after I was wrongfully fired?

Best Employment Lawyer Answer: Absolutely yes. Title VII, for example, expressly provides that a wrongfully fired employee has a duty to minimize their economic damages: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g)). The “shall” is important. It means that the Court must reduce lost wages by amounts that the fired employee earned or could have earned “with reasonable diligence.”

In Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), the United States Supreme Court that a wrongfully fired employee “forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied.”  In Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197-98, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), the United States Supreme Court further held: “Since 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.” Thus, if an employee makes no evidence to search for a job, he or she is likely giving up any right to back or front pay.

Can getting a new job make my case worth more?

Best Wrongful Termination Lawyer Answer: Actually, yes. As discussed above, making no or insufficient effort to get a job can result in an employee not getting any back or front pay. However, getting a new job will make getting those damages more likely. Furthermore, getting a lower-paying job allows qualified and skilled employment attorneys to argue that the wage differential will last for years (and possibly until retirement). This means that a new lesser paying job might make your case worth a lot more than staying unemployed for three or four more months.

Do I have to take any job to satisfy my duty to mitigate?

Best Employee Rights Law Firm Answer: No. While employees must make a reasonable effort to secure suitable employment after an unlawful termination, employees are not be forced to “go into another line of work, accept a demotion, or take a demeaning position.” Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).

Will I have to prove my efforts to get a new job?

Best Employment Lawyer Answer: Technically, the failure to mitigate is an affirmative defense, which means that once the wrongfully fired employee establishes a prima facie case and presents evidence on the issue of damages, the burden shifts to the employer to provide sufficient evidence to establish the amount of interim earnings or lack of diligence by the employee. Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 623 (6th Cir. 1983)(citing NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir.1968); McCann Steel Co. v. NLRB, 570 F.2d 652, 655 n. 4 (6th Cir.1978); Taylor v. Philips Industries, Inc., 593 F.2d 783, 787 (7th Cir.1979). The employer can satisfy this burden only by establishing that: (1) there were substantially equivalent positions which were available; and (2) the claimant failed to use reasonable care and diligence in seeking such positions. Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983). “The employer bears the burden of proving that ‘comparable, or substantially similar,’ employment was available to the employee; the employee is not required to prove mitigation.” Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 778 (9th Cir. 1990).

As a practical matter, the employer will request in discovery for the employee to identify all efforts undertaken to find and accept a new position; and if the employee cannot identify any or only limited efforts, the employer will point to those discovery responses to satisfy its burden to prove their affirmative defense.

How can I block a failure to mitigate affirmative defense?

Best Employees’ Rights Law Firm Answer: This is really simple. Keep track of all the jobs that you apply for. Our employment attorneys have made that even easier for you by providing this handy dandy job search tracking form (download here). Fill this out every time you apply online, fill out an application in person or email a résumé. There is no set number of jobs that automatically constitute “reasonable care and diligence” to find a new job because it will depend on the facts specific to the type of employment being sought. However, the more jobs that you record, the better the chance you have to beat a failure to mitigate affirmative defense raised by your former employer.

Who decides the issue of mitigation – judge or jury?

Best Trial Lawyer Answer: The jury decides the factual question of whether a wrongfully terminated employee made reasonably diligent efforts to mitigate damages. Gunter v. Bemis Co., Inc., 906 F.3d 484, 490 (6th Cir. 2018); Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 696 (2d Cir. 1998); Dailey v. Societe Generale, 108 F.3d 451, 456–57 (2d Cir. 1997); Wehr v. Burroughs Corp., 619 F.2d 276, 278 (3d Cir. 1980).

How do I sue my employer for wrongfully firing me?

Best Employment Lawyer Answer: If you have not consulted with or hired an attorney regarding your potential wrongful termination claims, the first thing you should do if find the best and most qualified law firm that focuses on employees’ rights and has resources to fight any attorneys your employer (or former employer) might throw at you. So, if you have been Googling “I need a lawyer because I have been wrongfully fired or terminated;” or “I was fired today because of my” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment and wrongful termination law website is an advertisement. The materials available at the top of this damage webpage and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I know what my lawsuit against my employer is worth?”; “How do I sue for wrongful termination?’; “ “What should I do if I was fired today for because I complained to HR about race discrimination”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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