How Many Hugs Equal Sexual Harassment?
A district court found itself trying to calculate the number of times a county sheriff hugged a subordinate, so that it could determine whether to allow the subordinate to proceed with her sexual harassment claim that she was subject to a sexually hostile work environment.
Victoria Zetwick was a county correctional officer who claimed that during a 12-year period, the county sheriff greeted her with over 100 unwelcome hugs and at least one unwelcome kiss. According to Zetwick, the sheriff greeted many female employees with hugs and kisses, but generally greeted male employees with a handshake.
The sheriff and the county argued that the sheriff’s conduct wasn’t severe or pervasive enough to create a hostile work environment; instead, they said, the sheriff’s hugs and kisses were ordinary workplace socializing. The district court agreed with them, after trying to count the number of hugs in order to apply “a mathematically precise test” to determine whether Zetwick’s work environment was sufficiently hostile.
On appeal, the Ninth Circuit Court of Appeals held that it was up to a jury to decide whether an abusive environment was created by the frequency of the hugs, the fact that they came from a supervisor, and the impact that the hugs and the kiss had on Zetwick’s ability to work. Merely counting the instances of unwelcome conduct doesn’t address the impact it has on the victim.
An employer can be sued for creating or allowing a hostile environment when an employee is subject to harassment, if the harassment is severe or pervasive enough to change the conditions of employment and create an environment that the victim and any reasonable person would find hostile or abusive. In this case, the sheriff and the county claimed that the sheriff’s hugs didn’t create a hostile environment because they didn’t happen very often and they never happened when the sheriff and Zetwick were alone. In fact, the sheriff and county claimed, the hugs happened mostly at events like award ceremonies and parties.
Even if that were true, a celebration related to work doesn’t justify harassing conduct. Employers need to make sure their employees understand that a party is an extension of the workplace that must remain free of harassing conduct.
In addition, employers need to look hard at conduct that is aimed at only a few select employees. While the sheriff may have occasionally hugged male employees, his more frequent hugging of female employees was a red flag.
In this case, the Court of Appeals was concerned that not only was the sheriff Zetwick’s supervisor, but he was the highest-ranking officer in the department. As we’ve seen before with the US National Park Service, a supervisor’s hugs can be a big problem in a workplace.
As attorney Elaine Hogan noted in an article called “Can Hugging Be Hostile?” “even when a supervisor considers his or her physical affection to be friendly, a subordinate might think otherwise.” This is why employers need to be sure that employees “at all levels are trained regarding potential sexual harassment and hostile work environment issues.”
Although the district court conceded that there was no “magic number of harassing incidents” that would give rise to liability, it also determined that the sheriff’s conduct was not pervasive. According to that Court, “simple math” indicated that Zetwick experienced around seven or eight hugs per year.
But numbers aren’t everything. The Ninth Circuit Court of Appeal held that the lower court should have considered (and employers should consider) “whether a reasonable juror would find that hugs, in the kind, number, frequency, and persistence described by Zetwick, create[d] a hostile environment.”
In trying to determine the severity of the conduct, the Court of Appeals disregarded the district court’s statement that “the encounters were not physically threatening or humiliating.”
According to attorney Aaron Goldstein on the JD Supra Business Advisor blog:
There is an important lesson lying underneath the text of the Ninth Circuit’s decision. The type and severity of conduct that can constitute a hostile work environment is ever changing based upon developing social norms. Thirty years ago it might have been socially acceptable to call a subordinate employee “honey,” but today it most definitely is not. The trial court put the individual defendant’s conduct within the category of indisputably socially acceptable conduct. What the Ninth Circuit announced, without explicitly holding, is that it is no longer indisputably socially acceptable for a male to subject a female subordinate to frequent unwanted hugs.
Continuing the idea about changes in what is considered “correct behavior” at work, Mr. Goldstein also noted that in January 2017 the Equal Employment Opportunity Commission (EEOC) released proposed guidance on unlawful harassment that suggests that employers “may find it helpful to consider and implement new forms of training, such as workplace civility training and/or bystander intervention training, to prevent workplace harassment.”
Mr. Goldstein’s “developing social norms” don’t develop everywhere at the same time. For instance, a writer on a “human resources solutions” company blog stated that he “had to chuckle a bit” when he read about this case. No one should be chuckling about this case. Victoria Zetwick said that she was so upset by the sheriff’s conduct that she cried at work. And at the very least, the sheriff and the county have already spent a lot of time and money on this case, and are likely to spend more.
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