Can a supervisor who engages in excessive hugging and other seemingly innocuous conduct create a hostile work environment? The Ninth Circuit, in Zetwick v. County of Yolo, No. 14-17341 (9th Cir. Feb. 23, 2017), held that this question is one for the jury, and that a rule categorically excluding hugs and other common workplace behavior from creating an actionable hostile work environment would be improper. Consequently, physical contact traditionally perceived as non-invasive in the workplace can open the doors to a lawsuit even if the alleged harasser believes his or her conduct is friendly.
Excessive Hugging Can Create a Hostile Work Environment Even if the Hugs are Friendly or Kind in Nature
In the Zetwick case, the Plaintiff, a correctional officer at the Yolo County Sheriff's Department, alleged that the County Sheriff's conduct—consisting of numerous unwelcome hugs and at least one unwelcome kiss from 1999 to 2012—created a hostile work environment. The Plaintiff contended that she endured over one hundred hugs from the County Sheriff throughout her thirteen years of employment with the Sheriff's Department, and that she also witnessed the County Sheriff hug and kiss several dozen other female employees. This conduct occurred both at work and at work-related events. The Plaintiff brought claims against the County of Yolo ("the County") and the County Sheriff for sexual harassment in violation of Title VII of the Civil Rights Act of 1964, sexual harassment in violation of the California Fair Employment and Housing Act ("FEHA"), and failure to prevent sexual harassment in violation of the FEHA.
The County contested the frequency of the hugging and produced evidence that the hugs were friendly and innocuous. As a result, the district court granted the County's Motion for Summary Judgment and dismissed the Plaintiff's claims. However, the Ninth Circuit reversed the district court's ruling on the County's Motion after the Plaintiff timely appealed the decision.
In reversing, the Ninth Circuit reasoned that the district court had applied an incorrect legal standard: that courts do not consider hugs and kisses on the cheek to be beyond the realm of common workplace behavior. In eschewing this standard, the Ninth Circuit distinguished the cases relied upon by the lower court because they failed to identify the frequency of the hugging as well as the period of time over which the hugging occurred. Because the frequency of the hugging was well documented in the Plaintiff's case, the application of the stated principle regarding hugs in the workplace was inappropriate.
The district court also incorrectly applied a prong of the test for determining a hostile work environment cause of action. Instead of assessing whether the County Sheriff's conduct was severe or pervasive, which is the proper legal standard, the lower court required the Plaintiff to show that the conduct was both severe and pervasive. The district court improperly used this incorrect application of the test for actionable harassment to make its pertinent finding that the Plaintiff had not met the test, thereby leading to its decision to grant the County's Motion for Summary Judgment.
With these incorrect applications in mind, the Ninth Circuit ultimately held that a reasonable juror could find—from the frequency of the hugs—that the County Sheriff's conduct was out of proportion to ordinary workplace socializing and constituted an abusive environment. The Ninth Circuit pointed out that the lower court had failed to give due weight to the high frequency, number, and persistence of the conduct described by the Plaintiff, and thus had failed to take a totality of the circumstances approach as required. This was in error.
The Ninth Circuit also noted that the district court overlooked the circumstances in which the hugging occurred; in other words, the potentially greater impact that harassment from the highest ranking officer in the Sheriff's Department could have on an employee. The United States Supreme Court, in Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998), has recognized that, in general, acts of supervisors have greater power to alter the environment than acts of coworkers. Also overlooked by the district court was the difficulty the Plaintiff encountered in going to work each day because she was stressed, suffered from anxiety, and took a sleep aid, all of which could interfere with her employment. These findings suggest that a reasonable juror would have an evidentiary basis to find that the Plaintiff worked in an abusive environment.
The Ninth Circuit's admonishment of the district court's decision did not end there. It was also incorrect for the lower court to disregard the Plaintiff's evidence that the County Sheriff hugged and kissed other women. This class of evidence is relevant and probative of a defendant's general attitude of disrespect toward his female employees and can help establish that the alleged hostility permeated the workplace.
Lastly, the district court's finding that the Plaintiff's testimony was less credible than an after-the-fact declaration of a current employee was also incorrect. Because a reasonable juror could find that this employee/witness had reasons not to complain about past treatment to her current supervisor, this sort of evidentiary conflict and potential factual dispute in the testimony made resolution of the issue at summary judgment inappropriate.
Accordingly, the Ninth Circuit reversed the grant of summary judgment in favor of the County and the County Sheriff and remanded the case back to the district court, so that the Plaintiff could proceed to a trial on the merits.
Practice Recommendation
Even though hugging is commonplace in society and seemingly harmless, after Zetwick it is clear that unwelcome hugging at work or at work-related events can lead to litigation. To prevent the filing of a sexual harassment claim predicated on excessive hugging, employers should consider the appropriateness of implementing a "no hugging" rule for supervisory employees in sexual harassment training as well as in employee handbooks or other written policies. When defining harassment, including unwelcome or excessive hugging within that definition will sufficiently apprise your employees of the policy. Lewis Brisbois Bisgaard & Smith attorneys are available to help edit and draft your Employee Handbooks and company policies to effect and ensure the proper modification.
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