Why it matters

Weighing in on hugs in the workplace, the U.S. Court of Appeals for the Ninth Circuit published an opinion reversing summary judgment in favor of an employer. County correctional officer Victoria Zetwick sued her employer for an allegedly sexually hostile work environment in violation of Title VII and the California Fair Employment and Housing Act. Specifically, she said the county sheriff greeted her with unwelcome hugs on more than 100 occasions over a 12-year period, along with at least one kiss. The sheriff frequently hugged female staffers but used a handshake with male officers, Zetwick claimed. A district court granted summary judgment for the sheriff and the county. But the Ninth Circuit reversed, holding that a reasonable juror could conclude that the differences in hugging of men and women were not simply "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and opposite sex." The panel remanded the case for consideration of the totality of the circumstances, particularly whether a reasonable juror would find that hugs—in the kind, number, frequency and persistence alleged by Zetwick—created a hostile work environment.

Detailed discussion

Victoria Zetwick began working as a Yolo County, California correctional officer in 1988. In 1999, Edward G. Prieto was elected as the county sheriff, in charge of roughly 250 employees, including correctional officers. Prieto introduced himself to the corrections staff and hugged all the female officers present, including Zetwick.

According to her Title VII and California Fair Housing and Employment Act lawsuit, Prieto then subjected her to numerous unwanted hugs over more than a decade, until her departure in 2012. On one occasion, Prieto kissed Zetwick, ostensibly to congratulate her on her recent marriage. Because Zetwick turned her head, the kiss landed partially on her lips.

Prieto also hugged and kissed several dozens of other female employees, Zetwick alleged, but did not hug or kiss male employees. Taken as a whole, the hugs (and kisses) created a sexually hostile work environment, she claimed.

The county and the sheriff acknowledged that Prieto was a hugger, but disputed the number and frequency of the hugs and argued that, even if Zetwick missed it, he also hugged male employees on occasion. A district court judge granted the defendants' motion for summary judgment.

The U.S. Court of Appeals for the Ninth Circuit reversed, finding that the plaintiff generated genuine issues of material fact that Prieto's conduct was sufficiently severe or pervasive to alter the conditions of Zetwick's employment and create an objectively abusive working environment.

"[A] reasonable juror could conclude that the differences in hugging of men and women were not, as the defendants argue, just 'genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex,'" the court wrote.

The panel said the district court applied an incorrect legal standard when it held that hugs and kisses on the cheek are not outside the realm of common workplace behavior and conducted an improper analysis of the record. "[W]e cannot accept the conclusion that Zetwick did not state an actionable claim of a sexually hostile work environment," the court said.

A reasonable juror could credit the plaintiff's testimony about the sheriff's behavior "where her testimony is that Prieto hugged her more than one hundred times over the period from 1999 to 2012, that he hugged female employees much more often than male employees and, indeed, from Zetwick's observations, he hugged female employees exclusively," the panel wrote.

Even though it appeared that Prieto's hugs were "common" and that others in the workplace hugged, "neither of those things demonstrates beyond dispute that Prieto's hugging was within the scope of 'ordinary workplace socializing,'" the court explained. "A reasonable juror could find, for example, from the frequency of the hugs, that Prieto's conduct was out of proportion to 'ordinary workplace socializing' and had, instead, become abusive."

The Ninth Circuit emphasized that district courts must consider "the cumulative effect of the conduct at issue" to determine whether it was sufficiently severe or pervasive to alter the conditions of the workplace, concluding that the lower court failed to consider the totality of the circumstances in Zetwick's case.

"For example, the district court failed to consider whether a reasonable juror would find that hugs, in the kind, number, frequency, and persistence described by Zetwick, create a hostile environment," the panel said. "The district court also completely overlooked legal recognition of the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department." Prieto's position as Zetwick's supervisor was "significant" to whether or not a reasonable juror could find the hugs and the kiss alleged by the plaintiff created an abusive environment, the court added.

In addition, it was "improper for the district court to disregard Zetwick's evidence that Prieto hugged and kissed other women," the panel wrote, as evidence of the harassment of others "is relevant and probative of [a defendant's] general attitude of disrespect toward his female employees, and his sexual objectification of them."

The court reversed the grant of summary judgment in favor of the defendants and remanded the case for a trial on the merits of Zetwick's claims.

To read the opinion in Zetwick v. County of Yolo, click here.