Summary: The law separates the wages your employer cost you from the harm your employer did to you. The duty to mitigate has always applied to the first. In July 2026, the Fifth Circuit answered for the first time whether it also reaches the second, and held that it does not. This blog explains what the duty actually is, what your employer can and cannot hold against you at trial, and what to start doing this week.
Harassment does not end when you clock out. It follows you into the car. It sits with you Sunday night. It shows up in your sleep, in your stomach, in the way you brace before you open your email. You keep going to work because you need the job, and you keep telling yourself it will pass, and it does not pass.
At some point in all of this, someone will suggest that you could have handled it better. Maybe a coworker. Maybe a manager. Maybe, eventually, your employer’s lawyer, who will suggest it to a jury.
In July 2026, the Fifth Circuit told employers they cannot turn that suggestion into a discount.
What the Duty to Mitigate Is
The duty to mitigate comes from an old principle of damages law. When someone wrongs you, they pay for the harm they caused, but they do not pay for harm you could reasonably have avoided. In an employment case that means an employee who has lost pay is expected to make a reasonable effort to find comparable work. What you earn, and sometimes what you reasonably could have earned, gets subtracted from the back pay you are owed.
The word doing the work is not duty. It is reasonable. You are not required to take the first offer, change careers, accept a demotion, or move across the state to prove you tried. Honest, ordinary effort is the standard, and most people meet it without thinking about it.
Here is the part that matters for this decision. A discrimination or harassment case can involve two different kinds of money. There are the wages you lost, which are measurable and which the duty to mitigate has always governed. And there is the harm itself, which the law calls compensatory damages for emotional distress, and which exists because losing sleep and losing your health are not the same thing as losing a paycheck.
What SkyWest Wanted It to Do
A jury in Dallas found that SkyWest Airlines harassed a parts clerk because of her sex and then failed to remedy it, and awarded her damages for the harm itself. On appeal, SkyWest argued the award should have been cut because she could have taken steps to reduce her own suffering. Therapy. Medication. Something.
Think about what that argument asks a court to accept. That a company can harm you and then hand you a share of the bill for not recovering fast enough.
Why the Court Said No
The Fifth Circuit had never decided this question. It decided it against SkyWest, and it gave two reasons.
The first is the statute. Congress wrote a duty to mitigate into the part of the law that covers lost wages. It did not write one into the part that covers emotional harm. The court would not add words Congress chose to leave out.
The second is history. SkyWest argued that mitigation is so old and settled a principle that Congress must have assumed it applied here. The court said that states the principle too broadly. The question was never whether people generally must limit their losses. It was whether anyone has ever been required to limit her suffering. No settled rule said so when Congress wrote this law in 1991, and none says so now.
The duty stands where it always stood. It reaches your paycheck. It does not reach you.
What This Means for You
Your job search still matters. Nothing in this decision changes the wage side. If your employer cost you income, keep applying, keep the confirmations, keep the rejections, and keep a simple record of who you contacted and when.
Your medical care is yours. Your employer cannot argue to a jury that you should have recovered faster, and it cannot price what it did to you against the appointments you did not make. That decision belongs to you, and you make it for your own reasons and nobody else’s.
An internal investigation is not the last word. SkyWest investigated, issued a few written warnings, and treated the matter as closed. A jury looked at the same investigation and awarded punitive damages on top of everything else. If your employer tells you it looked into your complaint and found nothing, that is your employer’s conclusion. It is not a verdict.
And write it down while it is happening. Messages describing something as it happens, and messages describing how you feel while you feel it, are the kind of evidence courts let juries see. Your employer is already keeping its own record. Its investigation file, its notes, its emails. You should have one too.
You do not need to write for a lawyer. Write to the people you already tell things to. Keep it somewhere personal, on an account your employer does not control.
The harm was theirs to cause. The record is yours to keep.
If you are facing harassment, discrimination, or retaliation at work and you want to understand what you can recover, contact me in Houston or a colleague in Dallas or Austin today.
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