Duty to Mitigate Damages in Employment Discrimination and Termination Cases: Challenges at Trial

Scope of Duty, Proving Lack of Mitigation, Expert Testimony

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Wednesday, March 23, 2022

Recorded event now available

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Course Materials

This CLE course will address practical and proven approaches for plaintiff and defense counsel presenting evidence at trial regarding the plaintiff's mitigation of damages.


Defense counsel must weigh the concerns of conceding liability at trial by discussing damages at all, against the need to give the jury tools to adequately value the case if they find for the plaintiff. Meanwhile, the plaintiff's counsel must weigh during the trial the need to show the plaintiff tried to mitigate against the likelihood that the jury will factor in the plaintiff's replacement compensation to reduce the ultimate verdict.

Like all other plaintiffs, employment plaintiffs must mitigate damages. In the context of post-termination pay, that means finding a new job. Jury instructions make crystal clear that the defendant bears the burden of proving that the plaintiff failed to mitigate her damages adequately. The defendant must do so by showing that there were available positions for the plaintiff that were comparable in duties and pay. Producing evidence of opportunities immediately post-termination can be challenging when the case has dragged on for years. Expert testimony can play a role in such proof.

Plaintiffs must be coached to keep records of all job searches--and rejected opportunities--and counsel must learn how to present them at trial in an admissible format to share with the jury.

Listen as this panel of experienced employment law attorneys discusses this oft-neglected area of employment law which can have huge implications on your jury verdict. The panel will review the salient legal points and provide practical guidance from pre-claim activity, during discovery, and proof at trial.



  1. Duty to mitigate
  2. Burden of proof
  3. Limitations on duty
    1. Similar job
    2. Compensation issues
  4. Evidentiary issues
    1. Proving the plaintiff's efforts
    2. Expert testimony
  5. Arguing mitigation to the jury


The panel will review practical and legal matters, including:

  • What are the relevant sources of federal and state law regarding mitigation?
  • Are there evidentiary steps a plaintiff can take to prove mitigation?
  • What are the practical implications of the defendant's burden regarding the plaintiff's mitigation?
  • How can a defendant strategically raise mitigation without seemingly admitting damages?
  • Who can testify about the adequacy of the plaintiff's efforts to mitigate?


Ladak, Sehreen
Sehreen Ladak

Proskauer Rose

Ms. Ladak represents employers from a variety of industries in all aspects of employment litigation, including wage and...  |  Read More

Spiggle-J. Thomas
J. Thomas (Tom) Spiggle

The Spiggle Law Firm

Mr. Spiggle founded Spiggle Law to help individuals facing difficult workplace issues. As a former prosecutor with...  |  Read More

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