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One Hundred Hostile Hugs

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In the recent 9th Circuit decision,Zetwick v. County of Yolo, the plaintiff, a county correctional officer alleged that her supervisor, the county sheriff, created a hostile work environment. Her primary complaint was that her supervisor hugged too much. Specifically, the plaintiff estimated that from 1999 to 2002, her supervisor hugged her approximately twenty five times; and from 2003 to 2011, he hugged herat least a hundred times. The plaintiff also indicated that she witnessed her supervisor hug other female employees, but never male employees.

The district court had decided as a matter of law that Plaintiff could not succeed on her hostile work environment claim under Title VII of the Civil Rights Act of 1964 ("Title VII"). Under Title VII, an employer is liable for conduct giving rise to a hostile environment where the employee proves: 1) she was subjected to verbal or physical conduct of a harassing nature; 2) that the conduct was unwelcome; and, 3) the conduct was sufficiently severe or pervasive to alter the condition of employment. However, the district court indicated that hugs and kisses were not "outside the realm of common workplace behavior" and the conduct was not sufficiently severe or pervasive as a matter of law to support a claim under Title VII.

The 9th circuit panel in Zetwick disagreed holding that "hugging can create a hostile and abusive workplace when it is unwelcome and pervasive."

The 9th circuit panel is not necessarily anti-hug, although during oral arguments all three judges expressed distaste for supervisors hugging their subordinates. Instead the holding indicates that a jury should decide whether the actions of the supervisor would "alter the conditions of employment."

Though the Zetwick Court was not specifically holding that hugging employees is prohibited, the case should give employers pause before they embrace their employees.

The evidence in Zetwick was that Sheriff was a prolific hugger. He not only hugged the plaintiff, but other female employees on a regular basis. The County alleged that the Sheriff also hugged male employees. Moreover, Plaintiff, herself, described the Sheriff's hugs "as the kind that one might give a relative or friend" (though it was argued that Plaintiff still felt uncomfortable with the hugging). Despite the seemingly good-natured intentions behind the Sheriff's squeezes, they were apparently unwelcome by the plaintiff.

The moral of this case is that employers should tread carefully when there is touching in the workplace, particularly between supervisors and subordinates. A subordinate may feel they cannot reject the touching of a supervisor without repercussion to his or her job. A healthy handshake or fist bump may be a better practice when trying to be friendly at work. Employers should also provide harassment prevention training for supervisors to give guidance in navigating the gray areas of harassment.

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