This practice note describes the duty to mitigate damages in employment discrimination cases under Title VII, the ADA, the ADEA, and Section 1981. Plaintiffs generally must use reasonable diligence to reduce lost wage damages after termination. Reasonable diligence may include searching for comparable employment, remaining available for work, accepting suitable reinstatement, or pursuing other reasonable employment alternatives.

Key topics include the nature of the mitigation duty, mitigation under federal employment discrimination statutes, deductions from damages, and the failure-tomitigate affirmative defense. The note addresses comparable employment, specialized skills, delayed job searches, selfemployment, dissimilar work after an extended search, academic programs, disability, and resignation or termination from interim work.

The note also reviews categories of payments that may affect damages. These include interim earnings, potential earnings, severance pay, layoff allowances, unemployment compensation, workers’ compensation, disability benefits, retirement benefits, Social Security benefits, and private insurance payments. Offset rules vary by jurisdiction and payment source. The affirmative defense focuses on the plaintiff’s diligence and, in many jurisdictions, the availability of comparable work. Relevant evidence may include job search logs, applications, communications, offer letters, rejection notices, social media, deposition testimony, vocational evidence, economic analysis, and the plaintiff’s post-termination employment history.

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