Recently, the Fifth Circuit held that a plaintiff has no duty to mitigate emotional distress damages related to employment discrimination, finding no statutory or common law support for a duty to mitigate compensatory damages.
The ruling was based on the circumstances of Sarah Budd who won compensatory damages and punitive damages against SkyWest Airlines, Inc. after a jury found she had been harassed based on her sex and that SkyWest failed to remedy the situation. Budd alleged she had been subjected to a series of demeaning sexual comments from her coworkers, including at least one supervisor. She sent text messages to her husband about what she was experiencing and how the stress of her experience manifested into physical symptoms such as stomachaches and vomiting. However, it does not appear she ever received therapy or took medication related to her mental and emotional issues she attributed to the discrimination.
Following the jury’s award of compensatory and punitive damages, SkyWest appealed and argued, among other things, that Budd was required to mitigate her emotional distress damages and that the jury should have been instructed on mitigation. The Fifth Circuit disagreed, affirming the awards against SkyWest and noting that a majority of federal courts have held that Title VII plaintiffs have no duty to mitigate emotional distress damages.
It is not yet clear whether SkyWest will appeal the ruling further, or whether the United Supreme Court would take the case. However, the immediate effect is that – at least in the Fifth Circuit – employers cannot rely on questioning or scrutiny of a plaintiff’s (lack of) action regarding their claimed emotional distress to lower an eventual award from a jury.
