From Up-Skirting to Up-Kilting and Beyond


Just a few weeks ago, the Massachusetts legislature enacted a statute to close a loophole in the law in order to make “upskirting” a crime. While the law appeared to have universal support, one man apparently does not think the law goes far enough.

Angus MacPhool of Leicester, Massachusetts works as a general laborer at a farm owned by Ewan MacDonald, Sr. One day while MacPhool was climbing a ladder to bale hay from a loft in the barn, 5 year-old Ewan MacDonald, Jr., who was playing in the barn with his father’s smartphone, apparently took a picture of MacPhool. MacDonald, Jr., who plainly is quite the child prodigy, then apparently uploaded the photo to the Internet and inserted the phrase “hee-hee” in various places. While this might not seem like a big deal, MacPhool wears a kilt and is a “True Scotsman.”

After MacPhool learned of the photo, he was able to trace the uplink back to the elder MacDonald’s smartphone and brought suit against MacDonald. In his complaint, MacPhool alleged:

12.   Defendant Ewan MacDonald, Sr. (“Old MacDonald”), had a farm, and on that farm he had a barn.
13.   Old MacDonald had a son, Ewan MacDonald, Jr. (“Young MacDonald”), and Young MacDonald was in that barn. Young MacDonald took a photo of Plaintiff in violation of M.G.L. c. 105(b) [the “up-skirting” statute].
14.   [In this paragraph a redacted copy of the picture is shown] Young MacDonald posted the photo to the Internet, with a “hee-hee” here and a “hee-hee” there.
15.   Old MacDonald is liable for Young MacDonald’s conduct.

MacPhool’s complaint was dismissed, however, because he was wearing a kilt and not a skirt. (Does this remind any of the burrito vs. sandwich litigation?) Rather than fight the matter all the way through the court system, MacPhool is going right to the legislature, and he appears to have some momentum. MacPhool started a local branch of the national organization, Kilt Revelers and Promoters (KRAP), which has been lobbying heavily to have kilt-wearers declared as a protected class. While some believe the group is having an impact on the legislators, others question their heavy-handed tactics. Indeed, one staffer who wished to remain anonymous simply said, “I think KRAP stinks.”

What does this mean for in-house counsel? Well if KRAP gets its way, companies all around Massachusetts are going to have to make special accommodations for kilt wearers, some of which will include installing special low-flow floor heaters, and the elimination of vinyl or burlap fabric chair cushions. The legislature is set to vote on the new regulations tomorrow, and the In-House Advisor will let you know the outcome as soon as the vote is tallied.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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