Hugs and Kisses May Not Spur Affection in the Workplace

In a decision just two weeks after Valentine’s Day, the Ninth U.S. Circuit Court of Appeals (“Ninth Circuit”) has ruled that hugs and kisses may decrease, rather than increase, feelings of affection in the workplace. Specifically, the Ninth Circuit overturned a lower court decision dismissing a lawsuit filed by a county correctional officer who alleged that the county sheriff had sexually harassed her in violation of federal and California law. A copy of the decision in is available at this link.

The plaintiff in that case alleged that the sheriff had, among other things, sexually harassed her by “greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once, during a 12-year period.” The district court agreed with the defendants “that such conduct was not objectively severe or pervasive enough to establish a hostile work environment, but merely innocuous, socially acceptable conduct.” However, the Ninth Circuit was not so enamored with that view.

The appellate court said it is wrong to think “that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior.” Additionally, the Ninth Circuit ruled that the sheriff’s conduct did not have to be both “severe and pervasive’” because, for liability to attach, the conduct only had to be either severe or pervasive.

The appellate court was troubled by evidence indicating that the sheriff “hugged female employees much more often than male employees” and that he may have “hugged female employees exclusively.” Without confirming whether it would be acceptable if the sheriff had hugged men as frequently, the Ninth Circuit said that such evidence could allow “a reasonable juror” to grant a verdict in favor of the plaintiff. According to the opinion, “A reasonable juror could find, for example, from the frequency of the hugs, that [the sheriff]’s conduct was out of proportion to ‘ordinary workplace socializing’ and had, instead, become abusive.”

The take away from this is not that any hug or kiss in the workplace automatically leads to liability. Instead, the decision holds that courts must “consider whether a reasonable juror would find that hugs, in the kind, number, frequency, and persistence described by [the plaintiff] create a hostile environment.” In issuing that ruling, the Ninth Circuit did not provide any guidance as to what kind of hugs and kisses, or what number of them, or what frequency of them is across the line for purposes of sexual harassment. Thus, employers would be well advised to consult with legal counsel to determine if changes to their policies or workplace practices are recommended.

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