Court Upholds Award Of Back Pay For Employee Subjected To Discrimination, Harassment And Retaliation.

Gregory S. Schaer, a Monmouth County based New Jersey Employment Attorney located in Manalapan, represented the employee in a lawsuit against their employer alleging claims of gender discrimination, sexual harassment and retaliation.

In Blakey v. Continental Airlines, Inc., 1998 U.S. Dist. LEXIS 2532 (D.N.J. 1998), the jury sitting in United States District Court in Newark, New Jersey, a federal court returned a verdict in favor of a former female pilot who sued her employer for sexual harassment, awarding the employee $480,000 in back pay, $15,000 in front pay and $500,000 for emotional distress, pain and suffering. However, the jury found that the employee had failed to mitigate her damages and subtracted $120,000 from her back pay award of $480,000.

Following the trial, the employer moved to have the entire verdict vacated including the jury’s award of back pay claiming that the jury’s reduction of the back pay by only $120,000 was inexplicable and inadequate. The court rejected the employer’s argument holding that the employer has the burden of proving that the employee failed to mitigate her damages.

The court held that an employee who fails to mitigate damages is not barred from recovering back pay. Rather, the employee’s back pay award may be reduced by the amount she could have earned with reasonable diligence.

The court noted that the employee was in an unusual position because she had not been terminated but rather was on an administrative leave by mutual consent. Therefore, the employee was not entirely free to obtain another job, nor was she able to return to work in what she perceived as an un-remedied hostile environment. The court found that the employer failed to introduce any evidence that it was reasonable for the employee to return to work and that the employer had the burden of proof on the issue of mitigation of damages and failed to meet it.

The court noted that although the employer eventually eliminated the problem, it did nothing to assure the employee that it had done so. Rather, the court noted that the employer allowed the employee to remain on administrative leave and did nothing to allay her fears and could not now avoid the consequences.

The court held that given evidence of the employee’s previous unpleasant experiences with her employer’s management, the jury was entitled to conclude that it was not reasonable for her to return to work.

To speak with an experienced New Jersey Employment Law Attorney, contact the Law Offices of Gregory S. Schaer, LLC, conveniently located in Monmouth County, New Jersey.

  1. Blakey v. Continental Airlines, 1997 U.S. Dist. LEXIS 2532 (D.N.J. 1997)
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