The Ninth Circuit Court of Appeals recently published a decision, providing guidance to courts on when hugs and other forms of unwanted touching cross the line and become sexual harassment. Victoria Zetwick began working for Yolo County as a correctional officer in 1988. In 1999, Edward Prieto was elected as the county sheriff and became Ms. Zetwick’s supervisor. Ms. Zetwick alleged that between 1999 and 2002, Mr. Prieto subjected her to over a hundred unwelcome hugs. On one occasion, Ms. Zetwick says that Mr. Prieto, apparently in an effort to congratulate her on her recent marriage, kissed her partially on the lips. She complained about the incident but her supervisors did not forward her complaints for investigation. Ms. Zewick claimed that in 2010, she was working with another female employee and Mr. Prieto reached out to hug her. He then stopped himself and said that people had complained so he would not hug her. But then he proceeded to hug her and the other female officer anyway.
Ms. Zetwick claimed that Mr. Prieto didn’t reserve his hugs just for her. She claimed that over the years she saw Mr. Prieto hug and kiss dozens of female employees but never saw him hug male employees – instead, he would shake hands with male employees. On another occasion, Ms. Zetwick claimed that Mr. Prieto repeatedly asked another female employee how much she weighed until she answered and looked at the employee in a sexually suggestive manner. Mr. Prieto claimed that he did in fact hug male employees and that all of his hugs were just friendly hugs. The County also claimed that Ms. Zetwick hugged other male co-workers and joked about Mr. Prieto’s hugs.
Several courts have determined that hugs and kisses on the cheek do not always create a sexually hostile work environment. However, in determining whether such conduct does crease a hostile work environment courts must look at who engaged in the conduct, the conduct itself, the number of times the conduct occurs, and the period of time over which the conduct occurs. Importantly, the conduct must be severe or pervasive- it does not have to be both.
In stating a claim for a sexually hostile work environment, an employee must show that the conduct was sufficiently severe or pervasive to alter the conditions of employment and created an objectively abusive working environment. In Ms. Zetwick’s case, the trial court dismissed her claims, finding that Mr. Prieto’s conduct did not create an objectively abusive working environment. However, the Ninth Circuit Court of Appeals reversed the trial court, holding that “a reasonable juror could conclude that the differences in hugging of and women, were not, as the defendant argue, just ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’” Zetwick v. County of Yolo, 2017 WL 710476 (citing Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.) The Court noted that reasonable jurors could look at the cumulative effect of the number of hugs and decide that his conduct was out of proportion to what is normal in employment and had become abusive. Furthermore, the Court recognized – consistent with prior Supreme Court decisions – that where the unwanted conduct is by a supervisor, the conduct has more power to effect the working environment.
Although the trial court disregarded evidence that Mr. Prieto had hugged and kissed other women, the Ninth Circuit correctly explained that evidence that Mr. Prieto engaged in similar conduct with other women is “relevant and probative of [a defendant’s] general attitude of disrespect toward his female employees, and his sexual objectification of them.” Zetwick v. County of Yolo, 2017 WL 710476 (citing Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479-1481. The Court reversed the trial court’s grant of summary judgment and sent the case back to the trial court for trial.
While not every touch, hug, or kiss in the workplace will create a sexually hostile work environment, if the conduct is either severe or pervasive, and employer may be liable for a claim of sexual harassment. If you believe you have been subject to a sexually hostile work environment, you should contact an attorney to discuss your legal rights.