Parker v. 20th Century Fox
Shirley MacLaine had a contract to appear in the musical "Bloomer Girl"; Fox breached the contract, but offered her the leading role in a western, "Big Country".
Did the court think MacLaine should have taken the job in mitigation? No, majority did not. Why not" A "different kind" of job. The majority says "different and inferior" but only actually looks at differences, little argument that they make the job inferior. The majority seems to think enough differences are sufficient.
How different does different have to be?
Dissenting judge: every job is different in some way. How different is different? Never the law that mere difference was enough. Question of whether the job was inferior. Note, this is an appeal from an summary judgment motion; dissenting judge claims the question of inferiority is a triable issue of material fact. What problems with this? Uncertainty for discharged employees, increased cost in litigation.
There is no black letter law here. Some people think it is just a matter of gut feeling. Differences in the case: musical, western; right to approve director, no such right.
Loose reasonableness standard
One has to take cost-effective/reasonable steps to mitigate, but we give the non-breacher the benefit of the doubt as to what is cost effective. Where there is an easy calculation, less likely to give this benefit. If we follow Parker the black letter rule is a job need not be taken in mitigation if it is "different and inferior", with the emphasis on different because there has to be little factual showing of inferiority (if that is not a triable issue of material fact in this case, when will it be?)
Mitigation in the employment context
Suppose I hire you as my research assistant, promising employment for the semester (and termination for good cause only). Then I fire you after one week just because I feel like it. I promised to pay you $12/hour for 200 hours. What are your damages? $2400? But when I fired you, I offered you another job with my friend Joe, washing cars at $4 an hour for a total of 200 hours. So you could make $800. Should you damages be only $1600?
They should if taking the job is relevantly like selling the construction material for a profit. But is it? In not being a research assistant, you lose a chance to learn about the law, and--let us suppose--Joe is a terrible person to work for. If we put a dollar value on these differences, they might total more than $4 per hour. So then taking the car wash job would be like selling the materials at a loss.
Compare Luten Bridge
Luten bridge builds bridges; to mitigate, we require that it act as a seller of construction supplies. Can Luten bridge argue: "That's a different kind of job?" Why not?
Measurability as a factor
Here is one theory. It is easy to calculate the costs of the salvage operation in the bridge case: money from sale minus money spent in selling. Harder in the employment case--what is the monetary value of working for me, learning the law?
This is consistent with what court's do, but no court has said this is a key factor. Also: in employment context, reluctance to require (even in calculation of mitigation) that a person take a job the person does not want.
What if the employee takes the job anyway?
What happens if you take the different and inferior job? Can the breacher claim your earnings should be used to mitigate damages?
This is Southern Keswick, Inc v. Whtherholt. The answer is yes. Even though, if you had not taken the job, the court would not have used the earnings in a mitigation calculation, if you do take the job, they will. Why? Suppose you took the car wash job and it was "different and inferior". What do you get if we do not take your $800 into account in mitigation? You get $2400 and you are earning $800, so you come out with $3200 when what you lost by being fired was really only $1600.
Is this a good rule?
Suppose you hate the car wash job and that it is truly awful, but you had to pay your rent so you took it. If we measured your unpleasantness in dollars, you are really losing money. Counter argument: since you took the job, subjective factors not all that bad. Is this a good argument? It is not an uncommon one.
Incentive to mitigate
Does this rule decrease the incentive to mitigate? In the research assistant case, if you don't take the job, then you can stay home and get $12/hour. If you do take the job, then you only get compensated at $8/hour for a total of $12. So which is better? Not working for $12/hour, or working for $12/hour? Shouldn't the mitigator get some reward for taking the job--even if it is a pleasant job? Cts do not view it this way.