Court Embraces Claim That Workplace Hugging is Sexual Harassment

In the workplace, it may be best to stick with a handshake or a simple “good morning” instead of going in for the hug.

That’s the lesson from a recent Ninth Circuit Court of Appeals decision that permitted a female employee to pursue a sexual harassment case alleging that her male supervisor created a hostile work environment by hugging her repeatedly at work.

Lower Court Doesn’t Grasp the Argument

Victoria Zetwick, a county correctional officer in Yolo County, CA, sued her employer, claiming that her supervisor, Sheriff Edward Prieto, greeted her with unwelcome hugs at work on more than a hundred different occasions during a 12-year period.   She also alleged that he kissed her once.

A Federal District Court Judge in California dismissed Zetwick’s lawsuit before trial, relying on a line of cases finding that hugs and kisses fall within the realm of “common workplace behavior.” As such, they cannot form the basis of a hostile work environment claim.

On appeal, the Ninth Circuit Court of Appeals had difficulty getting their arms around the trial court’s logic.  They held instead that Sheriff Prieto’s hugging was sufficiently severe and pervasive to alter the conditions of Ms. Zetwick’s employment.  They therefore reversed the dismissal and ordered that Zetwick be permitted to present her case at trial.

Additional Evidence Clinches the Case

The Ninth Circuit emphasized that courts must look to the cumulative effect of the conduct at issue and not just focus on isolated incidents. They rejected any sort of mathematical test to determine when offending behavior crosses the line from acceptable to offensive.  To the contrary, they concluded that there is no “magical number of harassing incidents” that would give rise to liability and that each harassment claim must be assessed individually to determine if the behavior is sufficiently severe and pervasive to constitute harassment.

The Ninth Circuit also noted that lower court failed to account for evidence beyond the hugs that Zetwick’s work environment was hostile or abusive.  For example, there was evidence that the Sheriff hugged other female employees but tended toward handshakes for the male employees. Moreover, Zetwick testified that she also had been kissed and that she suffered from anxiety and stress as a result of her supervisor’s behavior.

As a result, the Appeals Court ruled that a reasonable jury could find that Sheriff Prieto’s hugging was outside the scope of “ordinary workplace socializing” and was sufficiently abusive to support a harassment claim.

Bottom Line

Would a single or occasional hug have created a hostile work environment? Probably not, but it may depend on whether the hugger is a direct supervisor and whether evidence of other sexually oriented behavior exists.

As the Appeals Court noted, there is no precise formula for when a pattern of behavior becomes sufficiently hostile to give rise to a viable claim.  Therefore, employers should continue to educate their workforce, communicate proper standards for workplace behavior and implement effective reporting procedures so any harassment issues can be addressed as early as possible.

Otherwise, you may find yourself wrapped up in a harassment claim that could put the squeeze on you.