Can a su­per­vi­sor hug an em­ployee?

The Reporter (Lansdale, PA) - - BUSINESS - Katie Loehrke In­side Busi­ness Trends

The U.S. Court of Ap­peals for the Ninth Cir­cuit re­cently ruled that a sex­ual ha­rass­ment law­suit could go be­fore a jury. The plain­tiff’s pri­mary com­plaint? Un­wel­come hugs.

125+ hugs in 13 years

The fe­male plain­tiff in this case (Zetwick v. County of Yolo) al­leged that she was forced to en­dure a sex­u­ally hos­tile work en­vi­ron­ment, hav­ing been hugged by her male boss at least 125 times over the course of 13 years, and kissed at least once. Male em­ploy­ees re­ceived hand­shakes, but did not re­ceive reg­u­lar hugs.

The em­ployee com­plained to su­per­vi­sors about the hugs, but her ob­jec­tions were not in­ves­ti­gated or re­solved.

‘So­cially ac­cept­able con­duct’

In court, the em­ployer ar­gued that the hugs were not “se­vere or per­va­sive enough to es­tab­lish a hos­tile work en­vi­ron­ment”; rather, they were “merely in­nocu­ous, so­cially ac­cept­able con­duct.”

A district court ruled that hugs and kisses on the cheek are “com­mon work­place be­hav­ior,” and dis­missed the case with­out a full trial.

The re­ver­sal

On ap­peal, how­ever, the U.S. Court of Ap­peals for the Ninth Cir­cuit said that the lower court had erred on a few fronts:

It had, at least once in its opin­ion, con­sid­ered whether the be­hav­ior in ques­tion was se­vere and per­va­sive, while the stan­dard re­quires that the be­hav­ior be only se­vere or per­va­sive.

It failed to con­sider the po­ten­tially greater im­pact of ha­rass­ment from a su­per­vi­sor (and in this case, the high­est-rank­ing of­fi­cer in the depart­ment).

It over­looked the ef­fects of the con­duct on the plain­tiff (she was “al­ways stressed” and suf­fered from anx­i­ety).

Over­all, said the Ninth Cir­cuit, the lower court tossed the case pre­ma­turely, since it had not prop­erly con­sid­ered the to­tal­ity of the cir­cum­stances, in­clud­ing the “kind, num­ber, fre­quency, and per­sis­tence” of the hugs. A rea­son­able ju­ror could, ac­cord­ing to the ap­peals court, find that the su­per­vi­sor’s be­hav­ior left the realm of “or­di­nary work­place so­cial­iz­ing” and en­tered into the zone of abu­sive con­duct.

The Ninth Cir­cuit, in late Fe­bru­ary, sent the case back to the lower court to al­low a jury to de­cide whether sex­ual ha­rass­ment oc­curred.

Where’s the line?

For a claim of sex­ual ha­rass­ment based on hos­tile work en-

vi­ron­ment to be ac­tion­able, the en­vi­ron­ment must be one that a rea­son­able per­son would find hos­tile or abu­sive, and one that the vic­tim did, in fact, find to be so.

Con­sid­er­a­tions of how “a rea­son­able per­son” would feel and whether con­duct is “se­vere or per­va­sive enough” can seem about as clear as mud to em­ploy­ers, and th­ese con­tem­pla­tions do leave a cer­tain mea­sure of sub­jec­tiv­ity. But em­ploy­ers can still help them­selves by con­sid­er­ing:

• The fre­quency of the un­wel­come dis­crim­i­na­tory con­duct;

• The sever­ity of the con­duct;

• Whether the con­duct was phys­i­cally threat­en­ing or hu­mil­i­at­ing, or a mere of­fen­sive ut­ter­ance;

• Whether the con­duct un­rea­son­ably in­ter­fered with work per­for­mance;

• The ef­fect on the em­ployee’s psy­cho­log­i­cal well­be­ing; and

• Whether the ha­rasser was a su­pe­rior within the or­ga­ni­za­tion.

Still, as the Ninth Cir­cuit pointed out in this case, th­ese con­sid­er­a­tions can’t be made in a vac­uum; they must be made with the “to­tal­ity of cir­cum­stances” in mind.

Play­ing it safe

When con­sid­er­ing whether a sit­u­a­tion may in­volve sex­ual ha­rass­ment, em­ploy­ers may want to con­sider the per­spec­tive of a “rea­son­able per­son” who is a bit on the sen­si­tive side. Re­mem­ber, if a case comes to a jury trial (as this one will), the jury may be more likely to iden­tify with the em­ployee than the em­ployer.

Em­ploy­ers that want to err on the side of cau­tion will fo­cus their ef­forts on stop­ping un­wel­come be­hav­iors long be­fore the ques­tion arises of whether the con­duct is se­vere or per­va­sive enough to cre­ate a hos­tile work en­vi­ron­ment.

Keep in mind that the em­ployee in this case did re­port her con­cerns, but they were not ad­dressed. Had the com­plaint been han­dled ap­pro­pri­ately, the em­ployer may have never found it­self test­ing the sever­ity and per­va­sive­ness of hugs in the first place.

Katie Loehrke is a cer­ti­fied Pro­fes­sional in Hu­man Re­sources and an edi­tor with J. J. Keller & As­so­ci­ates, a na­tion­ally rec­og­nized com­pli­ance re­source firm. The com­pany of­fers a di­verse line of prod­ucts and ser­vices to ad­dress the broad range of re­spon­si­bil­i­ties held by HR and cor­po­rate pro­fes­sion­als. Loehrke spe­cial­izes in em­ploy­ment law top­ics such as dis­crim­i­na­tion, pri­vacy and so­cial me­dia, and af­fir­ma­tive ac­tion. She is the edi­tor of J. J. Keller’s Em­ploy­ment Law To­day news­let­ter and its Es­sen­tials of Em­ploy­ment Law man­ual. For more in­for­ma­tion, visit www. jjkeller.com/hr.

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