When I was in high school (eons ago), the school had a “Hands Off Policy” (HOP). Essentially, this meant teachers and staff had to keep their hands off the students.
Before I graduated, Congress passed the Equal Rights Act of 1964, which was the beginning of the anti discrimination laws in the United States.
Currently, both federal and state law prohibit discrimination based on such characteristics as race, creed, color, national origin, age (over 40), gender, sex and others. In 1986, the US Supreme Court held, in Meritor Savings Bank v Vinson, that sexual harassment was a form of sex discrimination.
This case established the standards for analyzing what behavior can create a hostile work environment and when an employer could be held liable. In reality, this was the beginning of the equivalent of a workplace HOP.
Since then countless court cases and Equal Employment Opportunity Commission (EEOC) rulings have interpreted and refined the contours of permissible and impermissible workplace conduct. Several bright line principles regarding acceptable conduct are now firmly etched in the American workplace.
Nowadays, an employer can be held liable for hostile workplace harassment if an employee can establish that (1) he/she was subjected to verbal or physical conduct of a harassing nature, (2) the conduct was unwelcomed, and (3) that the conduct was sufficiently severe or pervasive to alter the terms and conditions of the victim’s environment and create an abusive working environment.
As a result, employers (or their lawyers) have drafted numerous workplace harassment policies and conducted untold hours of employee trainings, in an effort to regulate workplace conduct with the laudable goal of treating everyone with respect in the workplace.
However, a recent Ninth Circuit Court of Appeals case (Zetwick v County of Yolo) demonstrates there remains considerable difficulty in distinguishing what are “genuine but innocuous differences in the ways men and women routinely interact with members of the same or opposite sex.”
In Zetwick, a female corrections officer claimed, among other things, the male county sheriff hugged her more than 100 times over a 12-year period. Note: this amounts to approximately eight-nine hugs a year or less than once a month. The employee also acknowledged the hugs typically last only a couple of seconds and there were no other sexual comments or other inappropriate touching.
The employee claimed the hugs and a single misdirected kiss were unwelcome and created a hostile work environment for her.
Interestingly, the testimony showed that the hugs occurred primarily at awards banquets, GED graduation ceremonies for prisoners, office parties and at some training sessions, but never when the employee and sheriff were alone. She also claimed the sheriff exclusively hugged only women and not men.
While the employee claimed the occasional hugs began as early as 1999, she did not make anyone aware that the hugs made her uncomfortable or were unwelcome until she filed her claim in 2011.
Initially, the district court ruled in favor of the county and dismissed the case partially on the basis the alleged conduct was not severe and pervasive enough to make a viable hostile work environment claim. The Ninth Circuit Court reversed the District court and held a reasonable jury could find that the sheriff’s conduct was sufficiently severe or pervasive to hold the County liable.
Importantly, the Ninth Circuit noted the employee’s testimony the sheriff only hugged women, not men, could lead a reasonable jury to conclude that there were “qualitative and quantitative differences” in the hugging conduct toward the two genders. The court also noted that impermissible conduct can be either severe or pervasive, it need not be both.
Most employers are aware of the need for an effective workplace harassment policy and the need to provide regular and ongoing training regarding the parameters of appropriate and inappropriate conduct. However, based on this case, it is going to be even more difficult to determine what is socially acceptable workplace conduct or what a court might consider to be genuine but harmless differences in how employees interact in the workplace
Supervisors need to be aware their conduct needs to be respectful at all times and if there is any question regarding whether comments or actions toward any employees would be welcome or appropriate supervisors should check with Human Resources first and any avoid conduct that could be reasonably perceived as unwelcome by an employee.
Gil Sparks practices Employment and Labor Law with Ogden Murphy Wallace. He can be reached at firstname.lastname@example.org or 509-662-1954.