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When does hugging create an unlawful hostile work environment?

The U.S. Ninth Circuit Court of Appeals recently held that a jury could reasonably find that a Sheriff unlawfully sexually harassed one of his female corrections officers because he repeatedly hugged her and, on one occasion, kissed her. The female corrections officer complained to supervisors about the Sheriff’s harassment but they did not forward her complaint for investigation.  The court found that a jury could reasonably determine that this conduct created a hostile work environment.

The Ninth Circuit reversed the decision of a trial judge who had thrown the case out on summary judgment because he did not believe hugging could constitute sexual harassment. While hugging may not constitute unlawful sexual harassment in every case, the Ninth Circuit found that it did in this case where, among other things, (1) the Sheriff was the highest official in the department; (2) the hugging occurred over 100 times over twelve years; (3) the hugs were chest-to-chest; and (4) there was evidence that the female corrections officer who brought the case needed to get sleep medication because the Sheriff’s behavior upset her so much.

The court interestingly found that the alleged harasser’s prominent position made his conduct more likely to create a hostile work environment. The Sheriff won his position through an election and he was the highest official in the department. According to the court, the Sheriff’s high rank and authority over his employees gave his harassment a “threatening character” that would not have been the same had the Sheriff been a co-worker of the female corrections officer.

The Ninth Circuit’s decision is also noteworthy in how it addressed the female corrections officer’s claim that she saw the Sheriff make another woman uncomfortable when he hugged this other woman. The Sheriff’s attorneys got this other woman to sign a statement saying that the Sheriff’s hug did not make her uncomfortable. The Ninth Circuit held that a jury could reasonably choose to disbelieve the woman who signed the statement because the jury could determine that she had “reasons” not to complain about her employer’s misconduct. The Ninth Circuit was not explicit about what those “reasons” were; but the court was likely referring to the woman’s fear that the Sheriff would retaliate against her if she did not sign the statement.

This case illustrates that repeated hugging can create a hostile work environment.  But it is noteworthy that the trial judge in this case thought that hugging was relatively innocuous and could not create a hostile work environment.  Whether hugging will create a hostile work environment depends a lot on the specific circumstances of the case.  If you changed some of the facts of this case–such as if the harasser was a co-worker who hugged the female corrections officer a few times and she never complained–the hugging probably would not have been enough to create a hostile work environment.