Hugging can be a social greeting exhibiting friendliness and a caring personality. However, at least one court has found that pervasive, unwelcome, hugging could rise to the level to constitute sexual harassment under Title VII of the Civil Rights Act of 1964. The 9th Circuit Court of Appeals made a ruling on a California case of Victoria Zetwick v. County of Yolo and Edward G. Prieto, Sheriff of Yolo County that unwelcome hugs and/or kisses on more than 100 occasions over a 12-year period could be found by a reasonable jury to be sufficiently pervasive to alter the conditions of Zetwick’s employment and create an objectively working environment and therefore in violation of federal law employment discrimination Title VII. I envision if the case actually gets to a jury at least one or more jurors will smirk at a sexual harassment case were the named county is the children’s shouted saying when they do something fun, YOLO, the acronym for You Only Live Once. This case was an unpublished decision and therefore is not legal precedent in any federal circuit; yet the analysis of the court could equally apply in the federal courts for New Hampshire and Massachusetts.
An occasional hug or kiss on the cheek may not be outside the realm of common workplace behavior. The issue is whether the hugs are severe or pervasive so as to alter Zetwick’s employment and create an objectively abusive working environment. Regular hugs where the hugger’s arms and hands do not grope are not likely to be severe actions that create an objectively abusive working environment. However in the Zetwick case, she alleged that her boss, the Sheriff, had hugged her more than over 100 occasions over a 12-year period which a reasonable jury could find was pervasive. The Sheriff had the power to alter Zetwick’s work environment and the Court had found that a reasonable jury could conclude that his conduct created a hostile work environment.
If one of Zetwick’s lateral co-workers went to hug her, she could have politely asked that he not, yet with your boss it could be a more uncomfortable situation. Bosses should understand that subordinates may not feel comfortable voicing their objection to physical contact. This is not to suggest that all hugs should be banned from the workplace, but management should be cognizant that physical contact with subordinates may be unwelcome and depending on the circumstances may result in a sexual harassment claim. If you hug you may want to save it for a polite, brief hug social gathering or perhaps as a more supportive hug as sign of caring such as at an employee’s wedding or their close relative’s funeral.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].