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."
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.