As human beings, we hoped this day would never come. But as HR pros, we all thought it would. And now it has arrived: the day when hugging in the workplace dies.
With a new ruling by the U.S. Court of Appeals for the Ninth Circuit, it appears we’ve reached the point in our history when employers must ban hugging from any and all work-related functions.
The court just allowed an employee’s sexual harassment lawsuit — in which hugging was the primary offense — proceed to trial. As a result, the employer, Yolo County in California, is staring squarely at an expensive court battle or settlement.
Hugs at work functions
County correctional officer Victoria Zetwick sued Yolo, claiming that county sheriff Edward Prieto created a sexually hostile work environment for her.
Zetwick’s lawsuit claims that over a span of 12 years, the sheriff hugged her at least 100 times and kissed her once.
The county and Prieto tried to get her lawsuit thrown out on summary judgment before it went to trial. They argued that Prieto’s conduct was not objectively severe or pervasive enough to establish a hostile work environment claim. They said it was merely innocuous, socially acceptable conduct.
Yolo and Prieto acknowledged that, after his election, he hugged all the female officers who were present at the time. They also said that most of the incidents in which Prieto hugged Zetwick were at:
- parties involving sheriff’s office employees
- awards banquets
- GED graduations for prisoners, and some training sessions and meetings.
At no point did Prieto hug Zetwick when they were alone, the defendants claimed.
Yeah, but what about the kiss?
As for the kiss, here’s how the court described it:
“… at an awards ceremony, Prieto kissed Zetwick, ostensibly to congratulate Zetwick on her recent marriage to a sheriff’s deputy. The kiss landed on or [sic], because Zetwick turned her head, partially on the lips. Zetwick states that she expressed her shock at this incident to her husband, co-workers, and supervising lieutenants, but not to Prieto. Her supervising lieutenants did not forward her complaints for investigation or resolution.”
Zetwick claims that, over the years, co-workers and supervisors teased her that Prieto was going to kiss her on the lips.
In addition, she said she saw Prieto hug and kiss several dozen other female employees, but she didn’t see him extend the same gestures to male employees.
As a result, Zetwick said her workplace changed, and she found it difficult to concentrate because of Prieto’s conduct. She also claimed she became constantly stressed and anxious about Prieto’s touching, which she believed had sexual overtones. During her testimony, she claimed she cried at work as a result of the stress she felt from Prieto’s conduct. She claimed she also lost sleep due to the situation.
A jury will say how much is too much
The court shot down Yolo and Prieto’s argument that Prieto’s conduct was simply innocuous and socially acceptable, and that it wasn’t severe or pervasive enough to create a hostile work environment.
It said a jury must determine whether the hugs and kiss were severe or pervasive enough to create a hostile work environment. It said a reasonable juror could conclude that Prieto’s huggs were not just “innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.”
Some of the factors the court used to come to this conclusion were: the number and frequency of the hugs, and the fact that they came from a supervisor.
Takeaway for employers: While hugging is often an acceptable form of social greeting, it can now be a breeding ground for sexual harassment lawsuits, especially when they come from employees’ managers and supervisors. The reason is as simple as a court — and jury — won’t care what the intent of the gesture was. Instead, the focus will be on how it made the recipient feel.