Did you know that hugging in the workplace is sexual harassment? It is according to the 9th Circuit.

by Michael Haberman on March 2, 2017 · 0 comments

Not everyone is comfortable with closeness and can perceive it as harassment.

I had to chuckle a bit when I read this story on hugging being declared sexual harassment. After all the 9th Circuit is located on the West Coast, the land of “free love”, marijuana, hippie culture and a governor once known as Governor Moonbeam. Declaring hugging as wrong just goes against the image of the west coast, yet declare it they did.

The case

The case involved a female corrections officer who had received over 100 hugs, unwelcome hugs, from her boss the Sheriff, according to attorney Aaron Goldstein of Dorsey & Whitney LLP. The case was originally decided in favor of the County of Yolo, but was appealed to the 9th Circuit. The upper court decided that the lower court had misapplied definitions and incorrectly analyzed the facts. According to Goldstein, “In order to support a hostile work environment claim, a plaintiff has to show that he or she was subject to harassment that was either severe or pervasive.” Or as he concludes “Put another way, the conduct at issue must either be really bad, or there has to be a lot of it.”

Wrong analysis

The 9th Circuit said that the lower court had applied the concept that hostile environment harassment had to be both severe and pervasive. Since the 100 hugs had occurred over an extended period of time, they amounted to just 7 or 8 times a year. They did not consider this pervasive. They had also misapplied previous decisions, according to the 9th Circuit, where hugs had been disallowed as sexual harassment. As a result of this the 9th Circuit overturned the lower court and the plaintiff won her case of sexual harassment. As Goldstein concluded the court said “…it is no longer indisputably socially acceptable for a male to subject a female subordinate to frequent unwanted hugs.”

Hostile environment is in the eye of the beholder

In HR we have long said that hostile environment sexual harassment is in the eye of the beholder. Many people may not have had a problem with 7 or 8 hugs per year, even from the boss. Others would not have found even one acceptable. These standards shift with the times and the parties. The EEOC has addressed this in their new standards where they say “Hostile work environment cases turn on “expectations of civility and respect in the workplace.’”

If we have learned anything in the last couple of years the definitions of civility and respect in the workplace have changed considerably. You need to make sure your workplace efforts have kept up with today’s definition of civility and respect. With all the generations and diversity we have at work this definition is not what it was ten years ago.

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