United States: Hugs In The Workplace Can Get You Sued, Rules The Ninth Circuit

Can a supervisor who engages in excessive hugging and other seemingly innocuous conduct create a hostile work environment? The Ninth Circuit, in Zetwick v. County of Yolo, No. 14-17341 (9th Cir. Feb. 23, 2017), held that this question is one for the jury, and that a rule categorically excluding hugs and other common workplace behavior from creating an actionable hostile work environment would be improper. Consequently, physical contact traditionally perceived as non-invasive in the workplace can open the doors to a lawsuit even if the alleged harasser believes his or her conduct is friendly.

Excessive Hugging Can Create a Hostile Work Environment Even if the Hugs are Friendly or Kind in Nature

In the Zetwick case, the Plaintiff, a correctional officer at the Yolo County Sheriff's Department, alleged that the County Sheriff's conduct—consisting of numerous unwelcome hugs and at least one unwelcome kiss from 1999 to 2012—created a hostile work environment. The Plaintiff contended that she endured over one hundred hugs from the County Sheriff throughout her thirteen years of employment with the Sheriff's Department, and that she also witnessed the County Sheriff hug and kiss several dozen other female employees. This conduct occurred both at work and at work-related events. The Plaintiff brought claims against the County of Yolo ("the County") and the County Sheriff for sexual harassment in violation of Title VII of the Civil Rights Act of 1964, sexual harassment in violation of the California Fair Employment and Housing Act ("FEHA"), and failure to prevent sexual harassment in violation of the FEHA.

The County contested the frequency of the hugging and produced evidence that the hugs were friendly and innocuous. As a result, the district court granted the County's Motion for Summary Judgment and dismissed the Plaintiff's claims. However, the Ninth Circuit reversed the district court's ruling on the County's Motion after the Plaintiff timely appealed the decision.

In reversing, the Ninth Circuit reasoned that the district court had applied an incorrect legal standard: that courts do not consider hugs and kisses on the cheek to be beyond the realm of common workplace behavior. In eschewing this standard, the Ninth Circuit distinguished the cases relied upon by the lower court because they failed to identify the frequency of the hugging as well as the period of time over which the hugging occurred. Because the frequency of the hugging was well documented in the Plaintiff's case, the application of the stated principle regarding hugs in the workplace was inappropriate.

The district court also incorrectly applied a prong of the test for determining a hostile work environment cause of action. Instead of assessing whether the County Sheriff's conduct was severe or pervasive, which is the proper legal standard, the lower court required the Plaintiff to show that the conduct was both severe and pervasive. The district court improperly used this incorrect application of the test for actionable harassment to make its pertinent finding that the Plaintiff had not met the test, thereby leading to its decision to grant the County's Motion for Summary Judgment.

With these incorrect applications in mind, the Ninth Circuit ultimately held that a reasonable juror could find—from the frequency of the hugs—that the County Sheriff's conduct was out of proportion to ordinary workplace socializing and constituted an abusive environment. The Ninth Circuit pointed out that the lower court had failed to give due weight to the high frequency, number, and persistence of the conduct described by the Plaintiff, and thus had failed to take a totality of the circumstances approach as required. This was in error.

The Ninth Circuit also noted that the district court overlooked the circumstances in which the hugging occurred; in other words, the potentially greater impact that harassment from the highest ranking officer in the Sheriff's Department could have on an employee. The United States Supreme Court, in Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998), has recognized that, in general, acts of supervisors have greater power to alter the environment than acts of coworkers. Also overlooked by the district court was the difficulty the Plaintiff encountered in going to work each day because she was stressed, suffered from anxiety, and took a sleep aid, all of which could interfere with her employment. These findings suggest that a reasonable juror would have an evidentiary basis to find that the Plaintiff worked in an abusive environment.

The Ninth Circuit's admonishment of the district court's decision did not end there. It was also incorrect for the lower court to disregard the Plaintiff's evidence that the County Sheriff hugged and kissed other women. This class of evidence is relevant and probative of a defendant's general attitude of disrespect toward his female employees and can help establish that the alleged hostility permeated the workplace.

Lastly, the district court's finding that the Plaintiff's testimony was less credible than an after-the-fact declaration of a current employee was also incorrect. Because a reasonable juror could find that this employee/witness had reasons not to complain about past treatment to her current supervisor, this sort of evidentiary conflict and potential factual dispute in the testimony made resolution of the issue at summary judgment inappropriate.

Accordingly, the Ninth Circuit reversed the grant of summary judgment in favor of the County and the County Sheriff and remanded the case back to the district court, so that the Plaintiff could proceed to a trial on the merits.

Practice Recommendation

Even though hugging is commonplace in society and seemingly harmless, after Zetwick it is clear that unwelcome hugging at work or at work-related events can lead to litigation. To prevent the filing of a sexual harassment claim predicated on excessive hugging, employers should consider the appropriateness of implementing a "no hugging" rule for supervisory employees in sexual harassment training as well as in employee handbooks or other written policies. When defining harassment, including unwelcome or excessive hugging within that definition will sufficiently apprise your employees of the policy. Lewis Brisbois Bisgaard & Smith attorneys are available to help edit and draft your Employee Handbooks and company policies to effect and ensure the proper modification.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.