‘Hugs And Kisses’ Can Be Sexual Harassment

Victoria Zetwick is a correctional officer with Yolo County, California. Zetwick sued the County, alleging that Sheriff Edward Prieto created a sexually hostile work environment by, among other things, greeting her with unwelcome hugs and/or kisses on more than one hundred occasions over a twelve-year period. A trial court granted the County’s motion to dismiss the lawsuit, finding that Prieto’s conduct was not objectively severe or pervasive enough to establish a hostile work environment.

The Ninth Circuit Court of Appeals reversed the dismissal of the lawsuit and returned the case to the lower court for trial. The Court observed that “the parties dispute whether a reasonable jury could determine that Prieto’s conduct was sufficiently severe or pervasive to alter the conditions of Zetwick’s employment and create an objectively abusive working environment. We hold that a reasonable jury could conclude that the differences in hugging of men and women were not, as Prieto argues, just genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. Rather, a reasonable jury could find an objectively hostile or abusive environment, because of the nature, frequency, permanence, and cumulative effect of the conduct towards women in general and Zetwick in particular.

“The trial court extracted a supposed ‘rule’ that hugs and kisses on the cheek are not outside the realm of common workplace behavior, and, accordingly, concluded that such conduct could never support a Title VII claim. This ‘rule’ was created from just a few non-binding district court decisions. One of those decisions was 20 years old and another was 14 years old at the time of the district court’s decision. Thus, those decisions likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace – a decision more appropriately made by a jury.

“Also, the district court erred by applying a sort of mathematically precise test to determine that Zetwick’s environment was not hostile, based on its calculation that Zetwick had been hugged only a few times a year for a few seconds each time. Even if such a mathematical test were appropriate, there is a factual dispute as to its computation. Because a reasonable jury could find that Prieto’s conduct, particularly the alleged number and frequency of unwelcome hugs and kisses from a supervisor, was sufficient to create a hostile or abusive work environment, we reverse the grant of summary judgment.”

Zetwick v. County of Yolo, 2016 WL 6610225 (9th Cir. 2016).