Ninth Circuit Rules That Hugging Can Create A Hostile Work Environment

By Kamer Zucker Abbott

May 16, 2017

Earlier this year, the Ninth Circuit Court of Appeals issued a decision in the case of Zetwick v. County of Yolo that addressed the issue of hugging in the workplace.  The employee, a county corrections officer, alleged that she was subjected to a hostile work environment by the county sheriff who greeted her with unwelcome hugs on more than 100 occasions and at least one kiss.  The employer argued that the conduct was not severe or pervasive enough to create a hostile work environment and was merely innocuous, socially acceptable conduct.

The employee contended that the sheriff only hugged female employees. The employee admitted that the hugs were the kind that one might give a friend or relative, lasting only a couple of seconds, and not involving sexual comments or other touching.  The employer argued that most of the hugs were given at parties, award banquets, or graduation ceremonies for prisoners, but never when she and the sheriff were alone.  The trial court determined that the conduct was not sufficient to create a hostile work environment, pointing out that given the span of several years involved, the employee was not subjected to daily hugs.

However, the Ninth Circuit Court disagreed.  The Court determined that a reasonable juror could determine that the frequency of the hugs was out of proportion to "ordinary workplace socializing."  It also criticized the trial court for not considering the impact of the sheriff's position, pointing out that acts of supervisors can have a greater impact on an employee's working environment. The Ninth Circuit Court concluded that "hugging can create a hostile or abusive workplace when it is unwelcome and pervasive."  As such, it sent the case back to the trial court so that a jury could decide whether the employee was subjected to sexual harassment.

This case serves as a good reminder that seemingly innocuous conduct, such as friendly hugs, can still create liability if that behavior is unwelcome.  As we often cannot truly tell when conduct is welcome or unwelcome, it is always best to avoid such conduct in the workplace.  This is a good case to work into your training materials, and it is a lesson that is especially important for supervisors and managers.