In the five plus years of this blog, it’s rare to find topics that I haven’t covered, at least minimally.

One such topic, though, is the notion of “mitigation of damages”.  It is a concept found in lots of cases, but it has particular importance in employment discrimination cases.

An employee who claims he (or she) was wrongfully terminated because of his age, for example, cannot sit by and collect damages if he wins an age discrimination lawsuit. Rather, he must try to mitigate his damages, typically by conducting a job search to find comparable work.

Put another way, if a employee is laid off on a Monday, but is hired by a new employer on Tuesday for the same salary, the employee probably hasn’t suffered any real damages.

Last week, a federal court in Connecticut was confronted with the question of whether an expert can testify about a terminated employee’s failed job search and to what extent.

In Castelluccio v. IBM (download here), the employer wanted an expert to testify that the terminated employee had “not conducted a diligent pursuit of full-time, permanent employment opportunities to find a job.”

The court ruled, in essence, not so fast.  The expert cannot testify that the employee did not conduct a “diligent” job search because that is an “ultimate question in this case which is for the jury to decide.” He is also precluded from testifying that the plaintiff should have found comparable employment within 9-18 months, because it is not “reliable.”

But the expert can testify about the job search itself, including the “nature and degree of efforts which typify an average or successful job search…and how [the plaintiff’s[ efforts compare to what are typical — or successful efforts.”

Thus, testimony that compares the plaintiff’s job search efforts to the industry standard is permissible, so long as it doesn’t go beyond that.

What is also interesting about the case is that another federal court 12 years earlier, had placed the same limits on the testimony by the same expert.

For employers, the case is a useful example of what type of evidence is required of a terminated employee to mitigate his damages, and what type of testimony can be elicited by an expert to rebut that evidence.

At a minimum, employers faced with a termination claim should consider whether mitigation of damages will be a viable defense that may cut off damages at some point.

President Bush’s signature is expected any day now on the ADA Amendments Act of 2008 (click for my prior posts here), which represent some of the most important changes to federal employment laws in over a decade.  For employers in Connecticut, there is going to need to be some synthesis with Connecticut’s anti-discrimination laws so employers should not simply assume the ADA will apply over state law.

But regardless, these amendments are going to have a wide-ranging impact for most employers nationwide.  Here are some of the highlights:

When Do the Amendments Go Into Effect?

January 1, 2009.

Who is Affected by the Changes?

Employers who have been covered by the ADA before (those who have 15 or more employees) are going to be covered by the amendments.

What Changes Have Been Made On How a "Disability" is Defined?

Employers must now adopt a broad standard to determine if someone is "disabled" — something found in the language of the amendments itself. Courts are to provide coverage to individuals  "to the maximum extent permitted". 

In the short term, this means that more ADA cases are going to pass initial threshold tests. Prior to these amendments, courts dismissed many cases on the grounds that the individuals are not "disabled".  Employers should now assume that more employees are going to be covered by the ADA and make employment decisions with that assumption in mind. 

What is Now a "Major Life Activity"?

Until the amendments, the ADA was silent on what was a major life activity, leaving the issue to the courts to decide. But the new law has a laundry list of activities from thinking to concentrating, from eating to working that is now specified.  In addition,  the operation of any major bodily function is considered a major life activity. For employers, this is again another indication that a "disability" is going to be considered broadly. 

What Should be Done About Mitigating Measures?

Previously, courts and employers had to determine a person’s disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids.  Now, employers and courts must ignore those measures. Employers will now need to make sure that then engaging in the interactive process, these measures are properly separated.  

What About Ordinary Eyeglasses or Contact Lenses?

Despite the provision above, Congress created an exception for ordinary eyeglasses and contact lenses.  Those items CAN be considered when determining if someone is disabled.

Is The Revised "Regarded As" Provision In the ADA as Broad as it Seems?

Probably.  Under the amendments, an individual now must show only that that the employer perceived the individual has having a mental or physical impairment (not that that impairment substantially limits a major life activity necessary).  This is very broad and could potentially be setting the ADA up for a massive expansion in its scope.

But when the impairment lasts for only six months or less and is minor, it won’t qualify.  Whether this provision will have a real impact in narrowing the "regarded as" section remains to be seen. 

What’s the Takeaway For Employers?

Quite simply, ADA cases are likely to move from "threshold" issues (whether the person has a disability) to "liability" issues (whether the person was actually discriminated against).  Employers defending such claims should understand that ADA claims are going to be defended like many other types of discrimination claims: by showing that the employer has a legitimate, non-discriminatory reason for its decision. 

Employers should also start informing human resource staff  of the changes. These amendments are likely to affect the interactive process and employers may need to provide more accommodations to more of their workforce.  Caution should definitely be exercised in the short-term as employers adopt to these new definitions and rules. 

As always, consult with an employment attorney about how these changes will affect your company specifically.  And obviously, if you’d like any particular help for your company, feel free to drop me a line.