Hugging as unlawful harassment
Can hugging be unlawful harassment?
The Ninth Circuit Court of Appeals recently addressed the question of whether frequent unwanted hugging and one unwanted kiss in the workplace can constitute unlawful sexual harassment. In Zetwick v. Cnty. of Yolo (9th Cir. Feb. 23, 2017, No. 14-17341) 2017 U.S. App. LEXIS 3260, Ms. Zetwick alleged that her supervisor hugged her over one hundred times over a 13-year period, and kissed her partially on the lips on one occasion.
The trial court dismissed the case before trial after concluding that hugs and kisses on the cheek can never be unlawful harassment. On appeal, the Ninth Circuit found that the trial court failed to rely on any precedent that supported its conclusion. To the contrary, some of the precedent stood for the proposition that hugs and kisses, when unwelcome and pervasive, can constitute unlawful harassment. The appellate court also found that the trial court committed a second legal error by incorrectly stating that the standard for harassment is severe and pervasive conduct (as opposed to severe or pervasive). While the trial court correctly stated the standard elsewhere in its opinion, the Ninth Circuit found the incorrect reference to be significant because it occurred where the trial court found that Ms. Zetwick had not met the standard.
The appellate court turned next to whether there was sufficient evidence for a reasonable conclusion that unlawful harassment occurred. The Ninth Circuit reviewed federal harassment law, which requires a sexually offensive environment that both a reasonable person would find hostile or abusive, and one that the victim perceived to be so. It concluded that the evidence could satisfy this standard based on Ms. Zetwick’s testimony that her supervisor hugged her more than one hundred times during the period 1999 to 2012, and that he hugged female employees exclusively.
The Ninth Circuit faulted the trial court for viewing the evidence in a mathematically precise manner (seven to eight hugs per year on average, each lasting a few seconds) rather than considering the cumulative effect of the conduct. The court of appeals also determined that the trial court erred by failing to consider precedent that the conduct has greater impact when carried out by a supervisor, overlooking Ms. Zetwick’s testimony about the emotional impact of her supervisor’s behavior, and disregarding her testimony about her supervisor’s conduct toward other female employees.
Ultimately, the Ninth Circuit reversed the trial court’s dismissal of the case.