Huge MCAD Award Sends Another Message to Employers on Workplace Bias

Employers who have yet to realize the dangers of even subtle discrimination in the workforce should take note of a recent MCAD decision that awarded huge damages to a gender discrimination victim. Late last month, the Commission awarded her more than $540,000 in back pay, another $650,000 for front pay, about $80,000 in lost benefits, $300,000 in emotional distress damages, plus the 12% interest and legal fees that accompany all MCAD damages awards.

The size of the judgment is not the only thing worth noting. The former employee, Janice Switzer, appears to have presented little direct evidence that she was let go because she is female. Instead, she submitted circumstantial data and attacks on the business practices and measuring tools of her former employer, Office Max. The Commission rejected the employer’s claim that Ms. Switzer was chosen for layoff over her male counterparts because her quota attainment was lower than theirs. While that fact was established, quota setting mechanics were questioned. Other job performance criteria that favored Ms. Switzer were ignored because, the Commission wrote, the quota excuse “served as a neat and convenient justification for termination of Complainant’s employment.” Among the factors ignored were the female employee’s superior business development and customer retention. The MCAD also cited Office Max’s practices of excluding Ms. Switzer from golf outings, luncheons, and other networking events that men attended, then criticizing her because no one knew who she was.

Whether the decision in Switzer v. Office Max is a harbinger of things to come at the MCAD remains to be seen. What is clear is that, even if rare in terms of size, the case should warn employers that they not only must avoid overt workplace discrimination but seek out and eliminate subtle biases that may permeate society as a whole. Doing so will not be easy, particularly for larger companies with established workforce structures that have traditionally been dominated by men. Still, the process should be seen as worthwhile. Office Max, after all, not only suffered a cash loss that could approach $3 million in damages, interest and the legal fees incurred by both parties, it almost certianly damaged its reputation and undermined its own workforce. It fired a superior employee because, the MCAD concluded, she is a woman, thereby, perhaps, sacrificing its own profits in the name of an old boys network whose perpetuation likely does not serve its business interests on a number of levels.