Court opinions cutting back on sexual harassment lawsuits have become so commonplace that it is a comparative rarity to see a sexual harassment claim allowed to proceed through the litigation process. A recent federal court of appeals decision, however, seemed to draw a bit of a line in the sand – unwanted hugging can possibly amount to sexual harassment.
Victoria Zetwick is a correctional sergeant with Yolo County, California. In 1999, Edward G. Prieto was elected as the county sheriff. After his election, Prieto introduced himself to the corrections staff and hugged all the female officers present, including Zetwick.
In a later lawsuit, Zetwick contended that from 1999 to 2012, Prieto subjected her to numerous unwelcome hugs and at least one unwelcome kiss that, taken as a whole, created a sexually hostile work environment. Zetwick estimated that, from about 1999 to 2002, Prieto hugged her at least two dozen times and that, between 2003 and 2011, Prieto hugged her at least a hundred times. The County acknowledged some of the hugs, but contended that most of the incidents in which Prieto hugged Zetwick were at parties involving Sheriff’s Office employees, awards banquets, GED graduations for prisoners, and some training sessions or meetings, but no incidents when Prieto and Zetwick were alone.
In one particular incident at an awards ceremony, Prieto kissed Zetwick, ostensibly to congratulate Zetwick on her recent marriage to a Sheriff’s deputy. The kiss landed on, or because Zetwick turned her head, partially on her lips. Zetwick stated that she expressed her shock at this incident to her husband, co-workers, and supervising lieutenants, but not to Prieto. Her supervising lieutenants did not forward her complaints for investigation or resolution.
Zetwick contended that, over the years, her co-workers and supervising lieutenants teased her that Prieto was going to kiss her on the lips. She contended that, on another occasion in 2010, when she was working in the booking area with another female sergeant named Malugani, Prieto approached Zetwick, reached out to hug her, then stopped himself, and told her that people had complained, so he would not give her a hug. He then promptly hugged both Zetwick and Malugani anyway.
Zetwick contended that her workplace changed, and that she found it difficult to concentrate, because of Prieto’s conduct, in that she was constantly stressed and anxious about Prieto’s touching, which she believed had sexual overtones. She testified in a deposition that she sometimes cried at work, in the locker room, because of stress from Prieto’s conduct, that she lost sleep, and that she had to take sleep aids because of her anxiety.
The Ninth Circuit Court of Appeals found that Zetwick had submitted enough evidence to warrant a trial on the question of a sexually harassing hostile work environment. The Court observed that “to be actionable under Title VII, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. A reasonable juror could credit Zetwick’s testimony that Prieto’s conduct was sufficiently severe or pervasive to alter the conditions of Zetwick’s employment and create an objectively and subjectively abusive working environment. This is so, 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.
“More specifically, while it may appear that Prieto’s hugs were common in the workplace, and that some other cross-gender hugging occurred, neither of those things demonstrates beyond dispute that Prieto’s hugging was within the scope of ordinary workplace socializing. 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.
“In wrongly dismissing the lawsuit, 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. We have held that where hugging included chest to breast contact, a reasonable juror (and a reasonable woman) could find the hugging created a hostile environment. Zetwick is correct that a hostile work environment is ambient and persistent, and that it continues to exist between overt manifestations.
“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. The Supreme Court has recognized that acts of supervisors have greater power to alter the environment than acts of co-employees generally. Indeed, the Court has recognized that a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.”
Zetwick v. County of Yolo, 2017 WL 710476 (9th Cir. 2017).