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A Plaintiff’s Duty to Mitigate Damages

It seems counter-intuitive that a woman alleging pregnancy discrimination could be cut off from collecting damages if the same employer she alleged had discriminated against her in the first place offered her re-employment. However, in Bennett v. Capital BC Restaurants, LLC the Court considered this exact issue.

It is well established that an individual has an obligation to seek new employment once that individual has been terminated from his or her previous position. It is not acceptable behavior for an individual to sit back and accrue lost wage damages while his or her lawsuit against the previous employer plays out in court. This is known as the plaintiff’s duty to mitigate damages. However, whether an individual must accept re-employment from the same employer accused of discrimination is up for debate.

In Bennett, the Plaintiff was the former General Manager of the Defendant’s restaurant. During her maternity leave, the restaurant sold and the purchaser / Defendant replaced Ms. Bennett with a GM of similar or lesser qualifications. Ms. Bennett was later offered a position as a regional trainer, which she declined.

The Court in Bennet considered whether Ms. Bennett was cut off from seeking lost wages damages from the point she declined the regional training position. In this case, the Court agreed with Ms. Bennett that the position was not substantially similar as that of the GM and allowed the issue to proceed to trial. It is important for Plaintiffs to be aware, however, that in some situations, “a plaintiff’s rejection of an objectively reasonable offer of reinstatement terminates an employee’s eligibility for an award of damages based upon lost pay accruing after such a rejection,” quoting Conway v. Electro Switch Corp. 402 Mass. 385, 389-90 (1988).

This means that simply refusing re-employment of an objectively reasonable offer without a legitimate reason can preclude recovery of lost wage damages from that point forward. Whether the re-employment offer is objectively reasonable is determined on a case-by-case basis, but plaintiff/employees must give careful consideration if they intent to reject an offer of reemployment. If you have any questions about the contents of this post or would like to speak to an employment attorney about your workplace rights, please call us at (978) 228-2262.

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