by Paloma P. Peracchio
The Ninth Circuit has ruled that evidence of a male sheriff hugging female correctional officers more than male officers was sufficient evidence of hostile work environment sexual harassment for the claim to proceed to a jury.
Victoria Zetwick was a correctional officer, supervised by sheriff Edward Prieto. Zetwick sued Prieto and their employer, County of Yolo, for sexual harassment in violation of Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act. She alleges that Prieto created a sexually hostile work environment by, among other things, greeting her with hugs on more than 100 occasions and kissing her on one occasion, all over a 12-year period.
Zetwick presented evidence that over the course of 12 years, Prieto hugged her over one hundred times, and that these hugs were unwelcome. She also claims that on one occasion Prieto leaned toward her to give her a congratulatory kiss which landed partially on her lips. Zetwick claims Prieto expressed his awareness that she did not like his hugs, and on one occasion even stopped himself when he was about to hug her, citing complaints about his hugs, but then proceeded to hug her and another female correctional officer anyway. Zetwick admits the hugs were short and friendly, without sexual comments or overtones.
Zetwick presented further evidence that she observed Prieto hug and kiss several dozen other female employees, but only ever saw him shake hands with male employees. She also presented evidence of Prieto staring at another female employee’s body in a “sexually suggestive manner” and commenting on her weight.
Prieto and the County moved for summary judgment arguing that this conduct “was not objectively severe or pervasive enough to establish a hostile work environment, but merely innocuous, socially acceptable conduct.” The district court granted the motion, and Zetwick appealed. The Court of Appeal reversed the grant of summary judgment and remanded the case for a trial on the merits.
The Court held that the district court had erred in applying a blanket holding that “hugs and kisses on the cheek” are “outside the realm of common workplace behavior” and therefore cannot constitute harassment. The Court noted that while such conduct is not per se hostile or offensive, it can create a hostile work environment when the conduct is shown to be both unwelcome and pervasive.
The Court held that the district court failed to consider the totality of the circumstances when it found that there was insufficient evidence of sexual harassment to survive summary judgment. According to the Court, a jury could conclude that the kind, number, frequency, and persistence of the conduct was such that it took the conduct outside the realm of “ordinary workplace socializing” and created an abusive working environment.
The Court also noted that the district court failed to factor in the “significant” fact that Prieto was Zetwick’s supervisor in deciding whether he created a hostile work environment, citing the “greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department.” Indeed, the Court noted that a supervisor’s authority over an individual can make the harassment particularly threatening to his or her subordinate.
Finally, the Court noted, the district court improperly disregarded evidence that Prieto hugged and kissed other women, but not men. The Court held that this evidence was probative of Prieto’s “general attitude of disrespect toward female employees, and his sexual objectification of them.”
The takeaway from this case is that even seemingly benign social greetings in the workplace can be proper grounds for a sexual harassment claim if those greetings are unwelcome and frequent, and particularly if the greetings are done by a person with authority over a subordinate. Employees who supervise others must be properly trained in sexual harassment prevention every two years under California law.