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

July 16, 2026

What's New

The U.S. Court of Appeals for the Fifth Circuit has ruled that Title VII plaintiffs have no duty to mitigate emotional distress damages. In EEOC v. SkyWest Airlines, Inc., arising from allegations of severe workplace sexual harassment, the employer argued that the employee's emotional distress award should be reduced because she did not seek therapy, medication, or other treatment. The court rejected that argument and affirmed the jury's award.

What It Means

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. The court emphasized that Congress included a mitigation requirement in the statute's back-pay provision but omitted one from the compensatory damages provision. It also declined to read a common-law mitigation requirement into Title VII.

The ruling addresses an issue of first impression in the Fifth Circuit and rejects the reasoning of a 2022 Texas federal district court decision that had reached the opposite conclusion. As a result, employers may face greater difficulty reducing emotional distress awards based on an employee's failure to seek treatment.

What You Should Do

Although the decision addresses damages, the employer takeaway is preventive: employers are on stronger ground when they stop misconduct before it supports significant emotional distress claims. Employers should make sure employees know how to report concerns, managers know when to escalate them, investigations move promptly, and corrective action is documented.

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