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Friday, September 28, 2018

Failure To Mitigate Damages: WA State

by Gregory Williams, Esq. | What is the “failure to mitigate damages” defense and how is it typically applied in Washington State employment discrimination cases? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).


In Washington, defendant-employers usually assert the affirmative defense of “failure to mitigate damages” against plaintiff-employees during litigation of employment discrimination claims. An affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all allegations in the complaint are true. Blacks Law Dictionary, p. 451, “defense (affirmative defense)” (Rev 8th Ed. 2004); Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 842 P.2d 1047 (1993); CR 8(c). This particular defense is most often asserted when the plaintiff-employee challenges as discriminatory a discrete employment decision, such as a termination or a failure to hire.


The burden of proving a failure to mitigate damages in an employment discrimination suit is on the employer, and the employer must show the following to satisfy its burden:
  1. There were openings in comparable positions available for plaintiff elsewhere after defendant terminated or refused to hire plaintiff;
  2. The plaintiff failed to use reasonable care and diligence in seeking those openings;
  3. The amount by which damages would have been reduced if the plaintiff had used reasonable care and diligence in seeking those openings.
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (6th ed.). Juries are typically instructed that they should take into account the characteristics of the plaintiff and the job market in evaluating the reasonableness of the plaintiff's efforts to mitigate damages. Id. Importantly, the plaintiff’s failure to make an ongoing, concerted effort to find comparable employment does not preclude a back pay award. Henningsen v. Worldcom, Inc., 9 P.3d 948, 102 Wn.App. 828 (Wash.App. Div. 1 2000).


For example, in Henningsen v. Worldcom, Inc., a plaintiff-employee (Henningsen) brought a sex discrimination lawsuit against her defendant-employer (Worldcom), and the trial court (bench trial) entered judgment in Henningsen’s favor; the award included full back pay. Id. (internal quotations omitted). Worldcom then appealed alleging the trial court erred, because Henningsen failed to mitigate her damages. Id. (internal quotations omitted). Worldcom claimed that there was evidence that she traveled extensively, had a baby, married the baby’s father, and then proceeded to assist him in the management of his own business after she left Worldcom. Id. (internal quotations omitted).

The Court found that there was evidence that Henningsen failed to make an ongoing, concerted effort to find comparable employment and that the trial court even expressed some concerns about Henningsen’s underemployment. Id. (internal quotations omitted). But the Court also found that there was evidence that she worked on a limited basis for her husband’s business and tried to start a home business. Id. (internal quotations omitted). Ultimately, the Court concluded that Worldcom presented no evidence that employment comparable to her position at Worldcom was in fact available and, therefore, ruled that substantial evidence supported the trial court’s finding that Worldcom did not prove that Henningsen failed to mitigate her back pay damages. Id. (internal quotations omitted).

Thus, in the case of Henningsen v. Woldcom, the issue of mitigation of damages was determined in favor of the employee as a result of the employer’s failure to satisfy the first element of the test—evidence that there were openings in comparable positions available for plaintiff elsewhere after defendant terminated (or refused to hire) plaintiff.


If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

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