What may be acceptable behavior and entirely well-intentioned to one person may not be perceived similarly by others. This particularly holds true in the workplace, where co-workers are encouraged to form social bonds while maintaining professionalism. In a recent decision, the United States Circuit Court of Appeals for the Ninth Circuit in California recognized a claim for sexual harassment for unwelcomed and pervasive hugging. In Zetwick v. County of Yolo, Victoria Zetwick, a female correctional officer alleged that Edward Prieto, the county sheriff , created a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by hugging her on more than one hundred occasions over the course of a 12–year period. As a result, she had difficulty concentrating, was constantly stressed, and resorted to taking a sleeping aid at night.
Prieto argued in response that he first learned of Zetwick’s dislike for hugs when she filed an administrative claim. He further claimed that the hugs were innocuous, lasted only a couple of seconds, and did not involve sexual remarks or other touching. None of the incidents occurred when Prieto and Zetwick were alone. Rather, most often Prieto hugged Zetwick at work parties, awards banquets, training sessions and meetings. He also hugged other female and male employees as did Zetwick.
Nevertheless, the Court held that the evidence was sufficient for a reasonable juror to conclude that the frequency of Prieto’s hugs – by our calculations, 1 hug every 40 days assuming 100 hugs over 12 years – was out of proportion to “ordinary workplace socializing” and had become abusive. The Court went on to state that while cross-gender hugging may have been common in the workplace, there could be “qualitative and quantitative differences” in the hugging conduct toward men and women.
Instead of applying a mathematical test to determine whether the frequency of the hugs created a hostile work environment, the Court considered the cumulative effect of Prieto’s conduct. As a supervisor, Prieto had greater power and authority to alter the environment. Therefore, even though most of the hugging incidents did not occur on a daily basis, only lasted a few seconds, and were not physically aggressive or humiliating, the “chest to breast” contact and banter generated from Prieto’s behavior towards Zetwick was sufficient to establish a genuine issue of material fact for the jury.
Organizations often face challenges in formulating policies that explain and address “unwelcomed” and “pervasive” conduct, such as that demonstrated in Zetwick. As they say, “Where California goes, other states follow.” In the wake of Zetwick, employers would be prudent to consider that the line between ordinary workplace socializing and abusive behavior may become blurred in some instances. Employees should be advised to consider reasonable sensitivities and differing viewpoints that may impact a party’s perception of hugs in the workplace. For example, cultural and ethnic differences, socio-cultural background, upbringing, and differing levels of familiarity may shape what is commonplace to some and disrespectful to others. If properly warned, employees should be cognizant of these differences and monitor their own conduct while in a work environment.
Ultimately, organizations should have the goal to establish policies that acknowledge and incorporate behavioral differences and encourage employees to develop responses to differing social expectations. The workplace should be a safe space which encourages productivity, not one which is polluted with discomfort and is damaging to performance. Thus, the professional role should always override “friendly” interaction.
Blogger: Laura A. Hoffman, Esq.
Contributing editors: Erin J. Webb, John D. “Jack” Hoblitzell III
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