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
“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
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.”