Is a hug sexual harassment? What if hugs are given by a male supervisor to female staff? What if the male supervisor hugs male and female staff alike (although females more than males)? If a male supervisor hugs a female staff member over 100 times--over a period of 12 years--is that a hostile work environment?

This was at the heart of a recent court case: Zetwick v. County of Yolo. The undisputed facts are that Sheriff Edward G. Prieto repeatedly hugged the plaintiff, corrections officer Victoria Zetwick, over a period of 12 years. Prieto hugged lots of people--not just Zetwick. He did hug women more often than he did men.

Prieto and Zetwick didn't work together on a regular basis, but over a period of 12 years, Prieto hugged Zetwick somewhere around 100 times. That sounds like a lot, but when you break it down, it's less than once a month. There was also an incident when Prieto tried to kiss Zetwick on the cheek and she turned her head, which meant he kissed her partially on the mouth. This is not the main complaint; however, it does add to it.

The Ninth Circuit Court didn't say that this did constitute sexual harassment or a hostile work environment, but rather that it was possible for a jury to conclude that this was sexual harassment, therefore it should go to trial. (The lower court had given summary judgment to the county.)

So, in other words, this court is saying workplace hugs might be sexual harassment but then they might not be sexual harassment. It depends on the circumstances. The court opinion says:

Zetwick contends 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.

That certainly sounds like a hostile work environment. But what wasn't clear to me was whether or not this case meets the legal standards for a hostile work environment. In order for sexual harassment or a hostile work standard to be met, two things need to happen.

1. The person needs to be offended by the action/environment

2. A reasonable person would also need to be offended by the action/environment.

The former is pretty easy to establish in most sexual harassment claims. If I'm suing, that's generally enough of an indication that I'm offended. (Although that's not always the case. Colleen Bowers lost her sexual harassment case because, even though her trainer sent her sexually explicit messages, she wasn't offended by them.)

The latter is usually where a case like this will hang. Were Prieto's hugs something a reasonable person would find offensive? I'm going to guess that when this case goes before a jury, the answer to this will be no. Why? Because Zetwick is alone in her lawsuit, which most likely means her co-workers didn't find it offensive.

The other thing that isn't clear to me is what happened before the lawsuit. It states that Zetwick had exhausted the administrative remedies, but I'm not sure what that means. Did she complain to HR? Did she tell Prieto directly that she didn't want to hug him? I'm not sure. Generally, sexual harassment also requires the alleged victim to make a complaint before being allowed to sue. My question is, did she ask Prieto to stop, and if not, why not?

People with different backgrounds approach hugging in very different ways. I'm not a hugger. I don't care for it. I live in an area where hugging is how you greet people. Uncomfortable? Yes. Sexual harassment. No. Culture clash? Yes. You can have different cultures even within a town or an office. It sounds like most people were fine with the hugging.

So, what does this mean for your business? Do you need a hugging policy? Employment attorney Aaron Golstein says:

The important takeaway for employers is that the type and severity of conduct that can constitute a hostile work environment is ever-changing, based upon developing social norms. The trial court put the individual defendant's conduct within the category of indisputably socially acceptable conduct. The Ninth Circuit disagreed. Employers should take care to keep their employees updated with frequent trainings that take such changing social norms into account. In fact, on January 10, the EEOC [Equal Employment Opportunity Commission] released proposed guidance recommending that employers provide "workplace civility training" and "bystander intervention training."

Does this mean you need to ban hugging in your office? I don't think so. But what you do need to do is take complaints seriously. If someone--male or female--says "I don't like hugging," then no one should hug that person, and it shouldn't be held against him or her. Don't say things like, "The whole team hugs! It's how we bond!" or anything that implies that a lack of hugging is synonymous with a lack of team membership.

And if you are the person who doesn't like hugging? Try saying, "No hugs. Handshakes are great!" It may solve the problem before the first hug starts.

Published on: Mar 1, 2017