Updated: Whether Hugs in the Workplace Created a Hostile Work Environment is a Question for a Jury to Decide

Zetwick v. County of Yolo - Ninth Circuit Court of Appeals

Facts:  Victoria Zetwick ("Zetwick") worked as a corrections officer in Yolo County Sheriff's Department.  During her tenure there, she claimed that Edward Prieto ("Prieto"), the county sheriff, created a hostile work environment by giving her numerous unwelcomed hugs (on at least 100 occasions) and an unwanted kiss at least once.  Zetwick brought a hostile work environment claim under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act against both Prieto and the County of Yolo.  The defendants argued that any complained of conduct was no objectively severe or pervasive or enough to establish a hostile work environment (and instead was merely innocuous and socially acceptable conduct). 

The district court granted the defendants' motion for summary judgment on the grounds that Zetwick could not establish a valid hostile work environment claim.  Based upon the facts, the district court held that the complained of conduct was common in Zetwick's workplace (as other female employees were apparently hugged by Prieto) and that Zetwick had in fact hugged other employees before.  Zetwick subsequently appealed.

Holding:  The Ninth Circuit Court of Appeals began its analysis of the case with a reference to the standard needed to defeat a motion for summary judgment (evidence must exist "such that a reasonable juror drawing all inferences in favor of the respondent could return a verdict in respondent's favor").  In this case, Zetwick was required to produce evidence that Prieto's conduct "was sufficiently severe or pervasive to alter the conditions of [Zetwikc's] employment and create an [objectively] abusive working environment."  For an employer to also be liable for conduct giving rise to a hostile work environment, the employee must also prove (1) that he (or she) was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.

In this case, the Court of Appeals held that an incorrect legal standard had been applied by the district court, in so much that hugs and kisses in the workplace can be considered outside the realm of common workplace behavior.  The cases cited by the district court were held to not state or stand for the proposition that unwanted hugs and kisses could be acceptable workplace conduct.

As well, the Court of Appeals held that the district court improperly held that based on the totality of circumstances, Prieto's conduct did not create a severe or pervasive work environment.  In this instance, it was held that the district court did not properly consider the totality of the circumstances as the court failed to consider whether a reasonable juror would find that hugs (in the kind, number, frequency, and persistence identified by Zetwick) could create a hostile work environment.  The fact that Zetwick stated that she was stressed, suffered from anxiety, and took a sleep aid (as a result of Prieto's conduct) was also apparently not taken into account at the trial court level.  Given the totality of the circumstances and the unwanted physical touching from Prieto (which Yolo County allowed to continue), the Court of Appeals held sufficient evidence existed to allow a reasonable juror to find in Zetwick's favor.

Judgment:  The Ninth Circuit Court of Appeals reversed the lower court's granting of summary judgment in favor of the defendants and held that incorrect legal standards had been applied by the district court.  As a result, the Court of Appeals held that the sexual harassment claims brought by Zetwick should be heard by a jury.

The Takeaway:  All the way back in December of 2014, I wrote an overview about this case.  For those readers new to the blog, feel free to take a look at that case overview.  At the time, I wrote that the case should be interpreted rather narrowly as I did not think many other courts would find that the complained of conduct did not amount to sexual harassment (or at the very least, few courts would likely dismiss the case by way of summary judgment in favor of the defendants).

Of course the Court of Appeals decision in this case is not necessarily the end of the line for either party.  As the Court wrote, the case has been remanded back to the trial court level with instructions that the claims presented by Zetwick are to be brought before a jury to decide.  For those who have followed this case, it has certainly been a long time coming for it to reach this stage.  Stay tuned though, this one still has a bit longer to play out.

Majority Opinion Judge:  Judge Bennett

Date:  February 23, 2017

Opinion:  hr.cch.com/ELD/ZetwickYolo022317.pdf