Can a huggy boss create a hostile work environment? The Ninth Circuit holds that it's for a jury to decide, in a case where a sheriff allegedly hugged the women officers, but not the men.
Zetwick v. County of Yolo, No. 14-17341 (9th Cir. Feb. 23, 2017): The sheriff (named Prieto) ran an "office with approximately 250 employees, including the correctional officers." plaintifff Zetwick was one such officer. When Prieto began his job in 1999, he "introduced himself to the corrections staff and hugged all the female officers present, including Zetwick." He continued to hug Zetwick regularly from 1999 to 2012 - plaintifff claimed at least 125 times - plus "at least one unwelcome kiss."
"Zetwick also contends that, from 1999 to 2013, she saw Prieto hug and kiss several dozen other female employees, but did not see him hug male employees. Rather, she observed that Prieto gave male employees handshakes." Zetwick registered complaints about the hugs, but allegedly "[h]er supervising lieutenants did not forward her complaints for investigation or resolution.
Although the County did not deny that hugging occurred, they contended that they were "the kind that one might give a relative or friend, lasting only a couple of seconds, and not involving sexual comments or other touching. Zetwick contends that the hugs were, nevertheless, chest to breasts."
The County maintained that the "conduct was not objectively severe or pervasive enough to establish a hostile work environment, but merely innocuous, socially acceptable conduct." But the Ninth Circuit, reversing summary judgment for the defendant on her Title VII and California FEHA claims, holds that it is not so simple.
The district court erred, according to the panel, by categorically holding that "hugs and kisses on the cheek" are "common workplace behavior" and not actionable as harassment. The panel observes that such behavior may constitute harassment depending, among other things, on "the number of times or the period of time" the events occur. The district court also erred by demanding proof that the behavior was both severe and pervasive, rather than severe or pervasive.
The panel holds that, weighing the record in favor of the non-movant plaintifff, that a jury could find Prieto's conduct "out of proportion to 'ordinary workplace socializing'" and "abusive."
It faults the district court's effort to reduce the number of hugs to a mathematical formula, i.e., "simple math indicates that plaintifff experienced this conduct an average of around seven or eight times per year for a couple [of] seconds on each occurrence." 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." It also failed to factor in "the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department."
The panel also holds that it was "improper for the district court to disregard Zetwick's evidence that Prieto hugged and kissed other women," because it was probative of his "general attitude of disrespect toward his female employees, and his sexual objectification of them."
Finally, regarding the "because of sex" requirement, the county asserted "that the record shows that Prieto also hugged men, but they do not suggest that Prieto hugged men as often as he hugged women." And the record revealed "'qualitative and quantitative differences' in the hugging conduct toward the two genders."