When does workplace hugging go too far? The Ninth Circuit Court of Appeals recently weighed in with an opinion. Victoria Zetwick, a county correctional officer, based her Title VII hostile work environment suit almost entirely upon her supervisor’s practice of hugging her and the rest of the female staff.

Just How Much Hugging?

By her count, Sheriff Edward Prieto hugged Zetwick two dozen times from 1999 to 2002 and then another 100 times between 2003 and 2011. She admitted that none of the hugs lasted more than a few seconds and all of them happened in front of other people—mostly at workplace parties, award banquets and GED graduations for prisoners. She included one kiss–the Sheriff kissed her to congratulate her on her recent marriage to a sheriff’s deputy, she turned her head and the kiss landed partially on her lips. The Sheriff hugged other female employees, but gave handshakes to the male employees. Zetwick admitted that she also hugged male co-workers, but that the Sheriff’s hugs were severe or pervasive enough to cause her stress at work and create a hostile work environment.

Summary Judgment at the District Court

The County moved for summary judgment arguing that the Sheriff’s actions were just “genuine, but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” It cited cases to support the notion that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. The County argued that the Sheriff’s hugging was within the scope of “ordinary workplace socializing.” In a unique strategy, the County also calculated that based on her testimony, the Plaintiff would have experienced the hugs an average of seven or eight times a year for a couple of seconds on each occurrence. The District Court adopted the County’s arguments and found that the Sheriff’s conduct did not rise to the level of creating a hostile work environment. Zetwick appealed.

Ninth Circuit Reversal

The Ninth Circuit disagreed with the lower court. First, they noted that the case law cited by the County did not identify the number of times the hugging occurred. In addition, the Court pointed out that in a hostile work environment case, when the conduct is unwelcome and pervasive, it becomes unlawful. The Ninth Circuit also disagreed with the lower court’s finding that the hugging was ordinary workplace socializing. The Court stated that a reasonable juror could find, from the frequency of the hugs, that the Sheriff’s conduct was out of proportion with normal workplace behavior. The Court further noted that it was significant that the unwelcome hugs were coming from her supervisor. For all these reasons, the Ninth Circuit found that there were issues of fact that a jury should consider and reinstated Zetwick’s lawsuit.

No Hugging at Work?

So, does this mean that no one can ever hug a co-worker? Probably not but it does show that hostile work environment claims do have a very subjective element. Courts will look to whether the conduct is unwelcome and if it is, whether it is pervasive or severe. Some people are huggers—-they do not find the conduct to be a problem. Others may feel differently. It also matters how often the hugging is happening. Could an employee file a claim for one hug at a company birthday celebration? Maybe not. Could an employee file a claim for an unsolicited hug from the copy guy every day when he sees her? Probably a lot closer to a yes. If the hugger is your boss, the answer is probably yes–certainly in the Ninth Circuit. The best thing to do is to have honest and direct conversations with your employees about sexual harassment and the reporting procedure. But no group hugs afterwards.