|December 24, 2009|
Previously published on December 15, 2009
In a recent decision, Massachusetts Commission Against Discrimination v. Willowbend Country Club, Inc., the MCAD awarded close to $1 million in damages, which included $200,000 for emotional distress, even though the complainant never sought any treatment for the distress that she alleged she experienced as a result of her layoff.
The MCAD found that age was a motivating factor in complainant Virginia DiIorio’s termination from her job as a real estate agent at a country club and real estate community. In particular, the MCAD credited testimony alleging that Willowbend’s vice president said that he “need[ed] to bring in some younger blood” and wanted to hire “younger, more attractive people” in order to create “some energy and enthusiasm.” The MCAD also found it compelling that ten of the thirteen employees Willowbend laid off were over fifty years of age, and Willowbend’s help wanted ads stated: “OUR NEW ERA BEGINS NOW.” Further, the MCAD held that the employer retaliated against DiIorio by barring her from visiting the resort after she filed her charge of discrimination.
After a public hearing, the MCAD ordered Willowbend to pay DiIorio back pay, front pay, and emotional distress damages, plus interest, all of which totaled over $922,000. The MCAD determined that an award of front pay for five years was appropriate because DiIorio was “fifty-nine years old at the time of her discriminatory layoff” and evidence established that she had difficulty finding a comparable position. In calculating the front and back pay awards, the MCAD considered DiIorio’s annual salary ($62,000) and her real estate commissions, which exceeded $100,000 in every year prior to her termination.
Despite DiIorio’s robust income history, the MCAD acknowledged that in the years following 2005, she would likely not have sustained her commissions given the “downward plunge of the real estate market.” To account for the new realities of the market, the MCAD awarded front and back pay equal to DiIorio’s annual salary, plus half the value of her 2005 commissions.
Part of the damages award included $200,000 for emotional distress, although DiIorio never sought medical or psychological treatment following her termination. The MCAD credited her testimony that the termination caused her to become extremely upset and emotionally distraught. In addition to the professional loss associated with her termination, DiIorio claimed that she had also lost an important social network when she was barred from the Willowbend community.
The Willowbend decision leaves open the possibility that front and back pay awards may be adjusted downward to reflect current market conditions. It also serves as a reminder that the MCAD can, and sometimes does, award substantial damages for alleged emotional pain and suffering even absent treatment from healthcare providers.