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The owner and president of a cosmetics company can be held personally liable to a former employee who suffered sexual harassment in the workplace, even though the corporation itself could not be held liable as an “employer” under the state anti-discrimination statute, ruled the Massachusetts Commission Against Discrimination (MCAD). Outgoing MCAD Commissioner Douglas T. Schwarz, who leaves the commission next month to become of counsel to Boston-based Bingham Dana, found that the former employee, Mary Julia Tunstall, proved that she had been subjected to both quid pro quo and hostile work environment harassment based on the conduct of Haim Weizmann, the owner and president of Acticell H’W Cosmetics, of Lynn, Mass. Tunstall established that shortly after she was hired as Acticell’s director of marketing, in October 1995,Weizmann began making suggestive comments about her looks and initiating sexually explicit conversations. They ultimately had sexual intercourse on several occasions. Tunstall testified that she was terminated from her job in November 1995. In an Aug. 2 ruling, Tunstall v. Acticell H’W Cosmetics, No. 96-BEM-0239, Schwarz held that Tunstall had endured numerous, unwelcome sexual advances; reasonably believed her employment depended on acceding to such advances; and worked in a hostile work environment. After noting that “the scope of individual liability under section 4(4A) [of the anti-discrimination law] is an evolving area of law before [the] commission,” Schwarz said that the statute’s liberal construction and broad remedial purpose allowed for Weizmann to be held liable in his individual capacity, even though Acticell was not an “employer” under the law because it employed fewer than six people at the time of Tunstall’s employment. In ruling that Weizmann could be held personally liable, Schwarz said that the intent of the anti-discrimination law was to impede the discriminatory conduct of individuals. He noted that the statute’s language requires a relationship between the offending individual and an employer. Schwarz ordered Weizmann to pay more than $75,000 in damages for Tunstall’s emotional distress and another $8,500 for her lost wages.

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