WELA ALERT: NINTH CIRCUIT

Unwanted Hugging Can Constitute Illegal Sexual Harassment

Plaintiff was a correctional officer. She claimed the sheriff created a sexually hostile work environment by greeting her with 100 unwanted hugs and one unwelcome kiss over a 12-year period. She claimed he pressed his chest into her breasts. She complained but her employer did not investigate. She also claimed that the sheriff also hugged many female employees but no male employees.

The district court granted summary judgment to the employer. The Ninth Circuit reversed. It held the district court erred by holding that as a matter of law that hugs or a kiss on the cheek can never constitute sexual harassment. The district court also erred by evaluating whether the conduct was “severe and pervasive” rather than “severe or pervasive.” Reviewed under the proper legal standard, a jury could find the hugs went beyond the scope of “ordinary workplace socializing” The number and frequency of the hugs were factors but not the only issues. The district court failed to consider the fact that the alleged perpetrator was the highest ranking officer in the department. The district ignored the fact that the sheriff hugged and kissed other women frequently but men not as often. A jury could find this was a qualitative and quantitative difference in treatment based on gender.

Zetwick v. County of Yolo, — F.3d – (9th Cir. 2/23/17) (Bennett (N.D. Iowa), Graber, Murguia).