Hugs from your boss could indeed create a hostile work environment.  In an opinion issued just last week, a three-judge panel of the Ninth U.S. Circuit Court of Appeals in Zetwick v. County of Yolo revived a sexual harassment lawsuit against the Yolo County Sheriff by holding that that the U.S. District Court improperly dismissed a lawsuit brought by a former corrections officer.  (9th Cir. 2017) No. 14-17341.

Victoria Zetwick, a female sergeant with over 24 years’ experience as a corrections officer, brought her suit pursuant to Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act, alleging that male Yolo County Sheriff Edward G. Prieto created a hostile work environment by hugging her more than 100 times between 1998 and 2012.  The sergeant also alleged that the Sherriff once kissed her to congratulate her on her marriage to a deputy in the same department.  The Sherriff reportedly hugged other female employees in the department as well but generally opted to give male employees handshakes instead.

Initially, Zetwick’s lawsuit was dismissed, with the District court concluding that hugs and kisses on the cheek are not outside the realm of workplace behavior, especially where Plaintiff experienced this conduct an average of around seven or eight times per year, for a couple seconds on each occurrence.  Defendants’ attorneys also argued that the hugging was the kind that one might give a relative or friend, lasting only a couple of seconds, and not involving sexual comments or other touching.  There was also evidence to show that hugging was a part of the department’s culture: both the Sherriff and Zetwick are believed to have hugged male co-workers on occasion. The District court cited several cases to support a rule that hugging coworkers is acceptable workplace behavior.

But the Ninth Circuit has now disagreed, stating in its initial memorandum that that the rule adopted by the District court fails to reflect the changing, contemporary standards of socially acceptable conduct in the workplace.  Accordingly, the Ninth Circuit held that a jury should decide whether or not the Sherriff’s hugs created a hostile work environment.  The court further explained that, while flirting, hugging, and even kissing in the workplace may not be per se intimidating, hostile, humiliating, or offensive, such conduct can, nevertheless, become unlawful when it is unwelcome or pervasive.  Depending on the number of times or the period of time hugging occurs, a jury could indeed find this conduct to fall beyond ordinary and acceptable workplace socializing.

Many employees may feel as if a bad supervisor, a rude coworker, a dreary workplace, or the lack of benefits constitute a hostile work environment.  But, for a workplace to be hostile under California law, an individual’s behavior must be so severe or pervasive that it interferes with an employee’s ability to perform his or her job.  Harassing or annoying conduct does not itself create a hostile work environment where it is only occasional, isolated, or trivial.  In addition, pursuant to Title VII of the Civil Rights Act, behavior must also be discriminatory in nature and based on a protected classification, such as race, sex, religion, or disability.     

How, then, is an employee to know whether they are the victim of a hostile work environment?  Alas, the Ninth Circuit in Zetwick confirmed that there is no magic number, mathematically precise test, or one-size-fits all guideline to determine whether not behavior—in this case hugging—transcends the contemporary standards of socially-acceptable conduct in the workplace.  However, the fact that hugs were initiated by a supervisor, the fact that an employee was hugged more than one hundred times over the course of twelve years, and the fact that hugs were initiated with women more often than men, could lead a reasonable jury to determine that a hostile work environment existed. 

As social norms evolve and common behaviors change, the Ninth Circuit has indicated that standards of acceptable conduct in the workplace may also be changing.  Likewise, what is offensive to one may not be offensive to all:  National Hug Your Boss Day has been celebrated by many employees each year since 2008.  And while there is no bright-line rule on the matter, now that the Zetwick case has been reopened, perhaps a jury can shed light as to whether hugs should be embraced in the workplace.