SAN FRANCISCO (Legal Newsline) – The U.S. Court of Appeals for the Ninth Circuit has overturned a lower court in ruling that hugs and kisses between co-workers may create a sexually hostile work environment.

The ruling reversed the lower court's summary judgment in favor of the defendants, a sheriff and the county he represents, in an action under the California Fair Employment Act. The case is Zetwick v. County of Yolo, decided Feb. 23.

“I don’t think the court was trying to cleanse California workplaces of any type of physical greeting or affection,” Brendan Begley, attorney and appellate law specialist with Weintraub and Tobin, told Legal Newsline.

“Instead, I believe the court was merely acknowledging that different people have different perceptions of their personal space and so, reasonable jurors might differ as to whether the repeated hugging and kissing of a subordinate – who did not like to be hugged and kissed – was too excessive in this case.”

The Ninth Circuit held that, “A reasonable juror could conclude that differences in the sheriff’s hugging of men and women were not, as the defendants argued, just 'genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.'”

Victoria Zetwick, a Yolo County correctional officer, alleged that from 1999 to 2012, Sheriff Edward Prieto subjected her to numerous unwelcome hugs and an uninvited kiss. The plaintiff estimated that, “from about 1999 to 2002, the defendant hugged her at least two dozen times and that, between 2003 and 2011, defendant hugged her at least a hundred times.”

The defendants argued that most of the incidents were at parties involving other sheriff’s office employees, awards banquets and training sessions or meetings. They contended that none of the incidents occurred when the plaintiff and defendant were alone.

The plaintiff also alleged that she was not the only one whom the defendant hugged and kissed, stating that between 1999 and 2013, she saw the defendant do the same to several other female employees, while he gave male employees handshakes.

The defense countered by stating in the case that the defendant’s hugs were, “the kind that one might give a relative or friend, lasting only a couple of seconds, and not involving sexual comments or other touching. The defendant contends that, even if the plaintiff did not see it, he also hugged male employees on occasion.”

The plaintiff maintained, due to the defendant’s conduct, her workplace changed, she had difficulty concentrating and she suffered stress and anxiety. She would often cry at work and lost sleep over the defendant’s conduct.

The Ninth Circuit ruled, “A reasonable juror could find, for example, from the frequency of the hugs, that [the sheriff]’s conduct was out of proportion to ‘ordinary workplace socializing’ and had, instead, become abusive.”

“In all seriousness, if the ruling were to be read as an outright ban on hugs and kisses at work, that would be a surprising outcome (but I don’t believe that’s what the court did),” Begley said.

“By the same token, I was a little surprised to read in the opinion that a different court suggested that hugging and kissing are such 'ordinary' things in the workplace that they can never be regarded as harassing.”

The Ninth Circuit reversed the lower court’s opinion and remanded for a trial.

“As I see it, there is no absolute rule here. So, for me, the takeaway is that employers should do two things," Begley said.

"First, they should make sure their policies adequately describe and forbid conduct that could be construed as harassing. Second, they should train their managers and supervisors to be attuned to such conduct, to make employees feel comfortable in raising such concerns, and to take appropriate steps to rectify such issues when they arise.

"Doing these two things will help to resolve most workplace misunderstandings before they wind up in the courtroom.”

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