Written by Doug Larsen
The Scene. Edward Prieto was elected as a county sheriff in 1999. When he introduced himself to staff he hugged all female officers present, including Victoria Zetwick. During a 12-year span, Ms. Zetwick contends that Mr. Prieto hugged her at least 100 times. (This averages out to 7 or 8 times per year.) She also contends that he kissed her once. It was a congratulatory kiss when Ms. Zetwick married a deputy. Because she turned her head, the kiss fell partially on the lips. All incidents occurred at banquets, meetings and other places where others were present.
Ms. Zetwick saw Mr. Prieto hug and kiss other females, but never males with whom he just shook hands.
Hugs were short, and never involved other touching or sexual comments. Nevertheless, hugs were chest to breasts.
Ms. Zetwick believed the hugs had sexual overtones. She was constantly stressed and anxious about the hugs, found it difficult to concentrate, lost sleep and cried at work. Yet Ms. Zetwick hugged male co-workers and joined in banter about Mr. Prieto’s hugs.
The Law. A sexually hostile work environment occurs when a person is subject to conduct of a harassing nature, that is unwelcome and either so severe or pervasive that it alters the conditions of employment. Some courts have concluded that hugs and kisses on the cheek are common workplace behavior. However, the Ninth Circuit concluded that this behavior may be very ordinary but when it is unwelcome and pervasive it is unlawful.
The court also concluded that a reasonable person could find Mr. Prieto’s behavior to be sufficiently severe or pervasive to alter the conditions of employment. The behavior lasted 12 years; it happened more than 100 times; and it happened more to females. Moreover, the hugs could be out of proportion to ordinary workplace socializing. Under these circumstances, the Ninth Circuit concluded that the case should go to a jury to determine whether or not jurors believed the behavior constituted sexual harassment.
The Lesson. Employers could draw several conclusions from this ruling. Some may conclude that hugging and kissing is appropriate so long as it is done to males and females equally. Other employers may conclude that hugging is authorized so long as it is not chest to breast. Others may claim that hugging is permissible if it is less than once every two months, or that kissing is appropriate if it is on the cheek.
I can’t conclusively say that any of these positions is per se wrong. As in most cases, it depends. It depends on the people. It depends on the circumstances. It depends on the status of the parties. It depends on whether the behavior is welcomed or reciprocal.
But “it depends” subjects an employer to a lawsuit. And my philosophy is “Avoid the claim!” If you avoid the claim, you save hundreds of thousands of dollars, wasted time, sleepless nights and hurt feelings. You may even save your job.
Zetwick v. County of Yolo, 2017 U.S. App. LEXIS 3260 (9th Cir. Feb. 23, 2017).