A defendant in a sexual harassment lawsuit may seek to limit or eliminate damages he caused to the plaintiff with evidence that the plaintiff did not mitigate her damages. It is the duty of an injured victim of sexual harassment to use reasonable diligence in caring for her injuries and reasonable means to prevent their aggravation and to accomplish healing. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the harassment victim failed to mitigate her damages, namely, that the plaintiff failed to use reasonable diligence in caring for her injuries or failed to use reasonable means to prevent their aggravation and accomplish healing; and that this failure was a cause of further injury or harm.
When one does not use reasonable diligence to care for her injuries, and they are aggravated as a result of this failure, the liability, if any, of another whose act or omission was a cause of the original injury, must be limited to the amount of damage that would have been suffered if the injured person herself had exercised the diligence required of her.
However, an injured person is not required to take a particular action if to do so would involve an unreasonably great effort, risk, or expense or would be impractical.
From the mere fact that a competent physician advised an injured person to submit to a course of treatment or operation, a court cannot assume that the injured person was negligent or unreasonable in declining such treatment or operation. Other factors that confronted the injured person must be considered by a court of law in determining whether, although she refused to follow the physician's advice, she nevertheless exercised reasonable diligence in caring for herself and her injuries.
A court award of lost wages will probably not be higher if the victim chooses not to seek another job after an unfair firing or constructive discharge from a hostile work environment. The mitigation defense obligates the harassment victim to make every reasonable effort to find comparable employment and replace her income. Some jurors and judges tend to view people who don’t find another job after being fired as lazy and unsympathetic.
Not only is sexual harassment illegal. The law also prohibits:
- Racial harassment
- Religious harassment
- Age-based harassment
- Harassment based on disability
- Harassment based on ethnicity or national origin