Hugs May Create Hostile Work Environment, 9th Circuit Rules
Author: David B. Weisenfeld, XpertHR Legal Editor
March 2, 2017
The 9th Circuit Court of Appeals has ruled that unwelcome workplace hugs may give rise to a sexually hostile work environment under Title VII of the Civil Rights Act. A female corrections officer claimed that her male superior hugged her often enough to make her uncomfortable at work. The employer and the co-defendant county sheriff countered that the hugs were completely innocuous and never involved sexual comments or touching.
But the San Francisco-based appellate court holds in Zetwick v. County of Yolo that a reasonable jury could find from the frequency of the hugs that the superior's conduct was out of proportion to "ordinary workplace socializing" and had, instead, become abusive. The court also says a jury could conclude that the differences in hugging of men and women were not "genuine but innocuous differences" in the ways that men and women routinely interact.
The female corrections officer contended that her superior greeted her with unwelcome hugs on more than 100 occasions, and a kiss at least once, during a 12-year period. She also said she observed the superior hug and kiss several other female employees, but did not see him hug male employees. The employer disputes the claimed number and frequency of the hugs.
In reaching its ruling, the 9th Circuit notes that the Supreme Court has recognized in Faragher v. City of Boca Raton that a supervisor's acts generally have greater power to alter the work environment than the acts of co-workers. The appellate panel found the supervisor's position significant as to whether the hugs and the alleged kiss subjected the corrections officer to an abusive work environment. As a result, the court sent the case back to the lower court for a trial on the merits of the sexual harassment claims.
This dispute illustrates the importance for employers of ensuring that their employees understand the proper boundaries between appropriate and inappropriate workplace conduct.