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Reversing position, court finds no duty to mitigate emotional damages under Title VII

By Lorene D. Park, J.D.

In a sexual harassment class action against a retailer, a federal district court in Oregon looked to statutory intent and found that there is no duty to mitigate emotional damages under Title VII (EEOC v Fred Meyer Stores, Inc, DOr, September 19, 2013). It therefore reconsidered a prior decision concluding otherwise and granted the EEOC’s motion for summary judgment on an affirmative defense asserted by the retailer.

Background. Female retail store employees alleged they were repeatedly sexually harassed by a regular customer. Management first learned of his conduct in 2007, when an employee complained that he reached down her shirt. In 2008, another employee reported an older customer tried to grab her breast. A third reported that he pressed his body against her and tried to touch her. In 2009, there were at least two reports by employees that he touched their breasts. The EEOC filed suit against the retailer on behalf of a class of female employees, alleging a sexually hostile work environment.

In a June 17, 2013 decision, the court denied the EEOC’s request for summary judgment on one of the retailer’s affirmative defenses. The defense asserted that the class members had a duty to mitigate damages, including emotional damages. The agency now moved the court to reconsider under Rule 59(e).

No duty to mitigate emotional damages. Granting the motion, the court found that it clearly erred by relying only on common law and failing to consider Congress’ “statutory purpose” in drafting Title VII. Now looking to the 1972 Amendments, it noted that Congress explicitly chose to include a duty for claimants to mitigate back pay losses. The “deliberate decision to carve out this duty to mitigate damages clearly signifies that Congress did not intend to create a duty to mitigate all compensatory damages. If Congress intended there to be a duty to mitigate all compensatory damages, it is illogical that it chose to single out the duty to mitigate back pay alone.” Accordingly, the court awarded summary judgment on the retailer’s affirmative defense.