Plaintiff Victoria Ztwick worked as a correctional office for the County of Yolo. See Zetwick v. County of Yolo.  She sued thekids hugging County and her supervisor, Sheriff Edward Prieto alleging that the supervisor’s conduct over a 12-year period created a hostile work environment.  She alleged the harassment consisted of Prieto hugging her on more than one hundred occasions and kissed her at least once.

Ztwick alleged Prieto created a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act (FEHA), CAL. GOV’T CODE § 12900 et seq.  Defendants argued that that such conduct was not objectively severe or pervasive enough to establish a hostile work environment under the law.  Defendants maintained that the activity was innocuous, socially acceptable conduct.  The lower trial court agreed with defendants’ arguments and granted their motion for summary judgment.  However, the Ninth Circuit court of Appeals overturned the trial’s court’s order and remanded the case to the lower court for trial.  This Friday’s Five focuses on five lessons employers should take away from the Zetwick v. County of Yolo case.

1. Hugging can create a hostile work environment

Defendants maintained that most of the hugs were during parties involving sheriff’s office employees, award banquets, GED graduations for prisoners, and some training sessions or meetings, but never when Prieto and the plaintiff were alone.  Plaintiff admitted that there was only one incident that Prieto kissed her at an awards ceremony.  He kissed plaintiff to congratulate her on her recent marriage, and plaintiff alleged that the kiss was partially on the lips because she turned her head.  She alleges she complained to her supervising lieutenants, but they did not forward the complaint for any investigation or resolution.

Plaintiff alleges that she also saw Prieto hug and kiss other female employees, but never saw him hug male employees.  Defendants argued that even Plaintiff herself described the hugs as ones that friends or relatives give each other.  In addition, defendants contended that plaintiff simply never saw when Prieto would hug male co-workers and that the hugs were not only directed towards plaintiff or females.

To succeed in proving hostile work environment harassment, a plaintiff must prove “(1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The appellate court held that there was enough evidence presented by plaintiff to at least have a trial:

We hold that, giving the record proper consideration, a reasonable juror could conclude that the differences in hugging of men and women were not, as the defendants argue, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.”

2. To be illegal, harassment must be both objectively offensive to a reasonable person and subjectively offensive in that the victim felt it was offensive

The appellate court set forth the standard required for a victim to allege harassment:

To be actionable under Title VII, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Geo Grp., Inc., 816 F.3d at 1206 (internal quotation marks omitted).

The appellate court found that given the testimony that Prieto hugged plaintiff more than one hundred times over a 12-year period, hugged female employees more often than male employees, and as plaintiff observed Prieto only hugging females, that plaintiff met the subjective and objective showing requirement.  This evidence was sufficient to establish the possibility that a reasonable jury could find in plaintiff’s favor.

3. Hugging could be outside of the “ordinary workplace socializing”

In rejecting defendants’ argument that the hugs in this case were “ordinary workplace socializing” that could not be the basis of a sexual harassment lawsuit, the court explained:

[W]hile it may appear that Prieto’s hugs were “common” in the workplace, and that some other crossgender hugging occurred, neither of those things demonstrates beyond dispute that Prieto’s hugging was within the scope of “ordinary workplace socializing.” A reasonable juror could find, for example, from the frequency of the hugs, that Prieto’s conduct was out of proportion to “ordinary workplace socializing” and had, instead, become abusive. See Geo Grp., Inc., 816 F.3d at 1206 (citing factors relevant to the determination of whether the environment was sufficiently hostile or abusive, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” (internal quotation marks omitted)).

4. There is no set number of harassing incidents that results in liability

The court was clear in the case that there is no “magic number of harassing incidents’ that would give rise to liability.”  The totality of the circumstances are taken into account in determining whether a reasonable juror would find the types of hugs and the number of hugs created a hostile environment.  This is why it is so important for employers to continually counsel employees who do not act professionally in the workplace.

5. Alleged supervisory harassment is taken more seriously

The appellate court also held the trial court erred by “completely overlook[ing] legal recognition of the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department. The Supreme Court has recognized that ‘acts of supervisors have greater power to alter the environment than acts of co-employees generally.’”  Like it or not, the appellate court looked at the fact that the accused harasser was a supervisor in this case as one of the circumstances it considered in holding that the plaintiff presented enough evidence that a reasonable jury could agree with.