October 15, 2015
In the business of intimate hair removal, it turns out that in Massachusetts it is not only unkind but costly for employees to joke about zapping a client in the scrotum with a laser. By “costly” I refer to a figure north of one quarter of a million dollars ($260,000.00, in fact), which is the sum of money that a respondent in a discrimination suit is going to have to part with following a decision from the Massachusetts Commission Against Discrimination (MCAD), namely Barnes v. Sleek, Inc., et al.
The bare facts are these: The respondents hired the complainant, Mr. Barnes, to manage a spa in the Burlington mall, where patrons could pay for certain hair removal procedures, such as bikini waxing. Mr. Barnes was only there a week, however. He was fired after complaining to his boss about the employees’ habit of laughing and joking about what the MCAD describes as “clients’ genitals and private parts” (emphasis added; until today I had thought that genitals were private parts, not something separate and additional to them). As an example, the decision refers to a “discussion about intentionally ‘zapping’ a male client in the scrotum with a laser.”
To make matters worse, at least so far as Mr. Barnes was concerned, “the outgoing manager of the spa flashed her breasts to a web-camera.” She expressed the hope that the owner was watching. And all of this going on in the Burlington mall, just a few doors down from Pretzel Twister and the Cheesecake Factory.
Perhaps it is my British school-boyishness, but given the nature of the work, i.e. pubic topiary, I would have considered ribaldry to be a what lawyers call a BFOQ, or a bona fide occupational qualification. Not so the MCAD, which awarded Mr. Barnes $41,641.67 for lost wages and $150,000.00 for emotional distress. In addition, the Commission imposed a civil penalty of $50,000.00 and ordered the respondents to pay a hair over $18,000.00 in legal fees, with interest running at 12%. Altogether that comes to more than a quarter of a million dollars, which is at least as eye-watering as the prospect of a laser zap to the private parts, including but not limited to the genitals.
Readers should note that the respondents did not mount a defense. They did not submit an answer and position statement nor did they, in the words of the decision, “cooperate in the Commission’s investigation.” Although it may not have made any difference to the finding of retaliation — and I am speculating here — the lack of a robust defense may have affected the size of the damage award. With a bit of care and attention, the respondents might have been able to shave off a few thousand dollars.