An Employment Law Anniversary: The “Lower Sights” Doctrine

Today is the 50th anniversary of Earth Day. It’s also Administrative Professionals Day, an opportunity for attorneys to recognize how essential our non-attorney staff is to our legal practice. Today is also the anniversary of Goodman v. London Metals Exchange, Inc., 86 N.J. 19 (1981). The Court’s unanimous opinion in that case, written by Justice Schreiber, has been cited in 178 court decisions since, according to a computer search.

This was an employment discrimination case under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”). Plaintiff Bonnie Goodman answered an advertisement by defendant that sought to hire a field representative. When plaintiff telephoned, defendant’s representative said several times that the job required a lot of travel. After plaintiff responded that she was used to extensive travel from other jobs that she had held, she was told that the job also required her to know “all about metals.” Defendant rejected her, purportedly based on her lack of relevant knowledge.

Plaintiff then had her mother call in response to the advertisement. Her mother had knowledge of precious metals. When told about the need for travel, Ms. Goodman’s mother said that her previous jobs had involved travel, and that she was a young widow with no dependents and could travel. She related her knowledge of precious metals but was told that it was insufficient. Defendant then hung up the phone.

Plaintiff filed a complaint with the New Jersey Division on Civil Rights, claiming gender discrimination. She won an award of, among other things, back pay at a rate of $175 per week. Defendant appealed, and the Appellate Division reduced the back pay to $40 per week. The panel did so because Ms. Goodman had refused to consider other available work that did not pay more than $135 per week. Both the Division on Civil Rights, on plaintiff’s behalf, and defendant petitioned for certification, and the Supreme Court granted both petitions.

Defendant’s argument was that the Division had misapplied the burden of proof. In a lengthy analysis, the Court disagreed.

Justice Schreiber then addressed whether the doctrine of mitigation of damages was applicable to back pay claims under the LAD and found no reason why it should not be. The Court then focused on how to rule on mitigation. There must be jobs “of a like character” available. The nature of available jobs, their location, and their level of pay all factor into whether a job is “of a like character.”

But the Court went on to say that “the degree of comparability required is not static.” Rather, “[w]ith the passage of time circumstances may dictate that the claimant lower his sights and accept employment with lower pay, with different work, or at a more distant location.”

But this “lower sights principle” was to be applied not “automatically.” Instead, it was to be invoked “with caution,” based on the particular circumstances of the person involved and the jobs available, and in recognition that “measured against the policy of promoting production and employment [that underlies the mitigation doctrine[ is the counter policy of righting the wrong attributable to an unlawful discrimination.” The Court remanded the case for proper evaluation of mitigation, including any potential applicability of the “lower sights” doctrine.