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Repeated "Friendly" Hugs and Kisses Can Rise to the Level of Actionable Sexual Harassment

    Client Alerts
  • March 17, 2017

Some people are naturally more affectionate than others. Most people have friends or acquaintances who go for hugs when a handshake is all that you expect. In the workplace, these personality types can clash, and “huggers” can irritate co-workers who would prefer not to be touched. Many employees view such conduct as boundary violations, and do not believe or care about the hugger’s motivations. While everyone is expected to put up with some degree of uncomfortable workplace behavior, a recent case from the Ninth Circuit Court of Appeals shows that this type of touching, even if considered by the hugger to be non-sexual in nature, can result in sexual harassment legal problems for the employer.

In Zetwick v. County of Yolo, a female corrections officer alleged that the county sheriff greeted her with unwelcomed hugs (and one kiss) on over 100 occasions during a 12-year period. The district court dismissed her sexual harassment suit, concluding that the alleged behavior was socially acceptable conduct, and not severe enough to establish a hostile work environment under Title VII. On appeal, the Ninth Circuit disagreed remanding the matter for trial.

The court first rejected any legal standard that would conclude that workplace hugs are within the realm of common workplace behavior. Hugs can create a hostile work environment if they are unwelcome and pervasive. The plaintiff alleged that the sheriff only hugged female employees, and a jury could conclude that their frequency exceeded normal workplace socializing. Simply dividing the number of hugs by the years of alleged conduct does not answer the question of whether the conduct was severe and pervasive. Finally, the Ninth Circuit noted that when this type of comparatively lower level of harassment comes from a supervisor, its impact on the employee is greater than would be the case with a co-worker. Given the discrepancy in authority, hugs from a supervisor can carry an implied threatening character.

If human resources receives a complaint from an employee about social touching or hugging, it cannot conclude that the matter is outside the scope of its harassment policy. The employer should take steps to review the matter, and if confirmed take appropriate steps to assure that the conduct will not continue. If the employee accused of the conduct responds that “everyone knows I’m a hugger,” the company can respond by informing them that their continued employment depends on their ability to restrain their impulses.