Fifth Circuit Rejects Duty To Mitigate Emotional Distress Damages Under Title VII

Title VII plaintiffs have no duty to mitigate their emotional distress damages, the U.S. Court of Appeals for the Fifth Circuit ruled in EEOC v. SkyWest Airlines, a case alleging severe workplace sexual harassment. The court declined to reduce the employee’s emotional distress award even though she did not seek therapy, medication, or other treatment.

The Fifth Circuit concluded that Title VII’s express mitigation requirement applies to back pay but not to compensatory damages for emotional pain, suffering, mental anguish, and similar noneconomic harms. Congress included a mitigation requirement in the statute’s back-pay provision but omitted one from the compensatory damages provision, the court emphasized. It also declined to read a common-law mitigation requirement into Title VII.

The ruling rejects the reasoning of a 2022 Texas federal district court decision that had reached the opposite conclusion.

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