Can 100 hugs from your supervisor over the course of 12 years amount to sexual harassment?

 AN OVERVIEW OF SEXUAL HARASSMENT

Sexual harassment can be verbal, physical or visual.  There are two types. (1) Quid pro quo, AKA, tit for tat, where decisions are conditioned on sexual favors. (2) Hostile Environment, where an offensive work environment is created by conduct such as staring at someone, making sexual comments and jokes, or physically touching or blocking a person in an intimidating manner.

A hostile work environment must be sufficiently extreme to change the terms and conditions of employment.  All verbal or physical harassment in the workplace is not actionable.  It must be severe or pervasive.  To be deemed pervasive, the incidents of misconduct must be sufficiently continuous and concerted.  A single incident may in some instances support a hostile environment claim depending upon its severity.  The required showing of severity of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct; i.e., the more incidents, the less severe they need be, and vice versa.

In California, employers are held strictly liable for the unlawful harassment of the company’s supervisors.  However, for the acts of a non-supervisor, an employer is only liable for the unlawful harassment if the employer knew or should have known of the conduct and failed to take corrective action.

California employers are required to take all reasonable steps to prevent harassment.  This includes policies & procedures in place to prevent it, and how to address complaints.  There are strict rules re policies/procedures; displaying posters; information sheets; and training.

To help prevent harassment, California employers’ policies should include (1) explanations of prohibited conduct; (2) protections against retaliation for those who complain and assurance of confidentiality to the extent possible; (3) a clear and accessible complaint process that includes a prompt, thorough, and impartial investigation; and (4) upon determination that harassment occurred, assurances of immediate and appropriate corrective actions.

ZETWICK V. COUNTY OF YOLO (9th Cir. 2017) 850 F.3d 436

This case illustrates the difficulty in identifying conduct that qualifies as sexual harassment.  Victoria Zetwick alleged that her employer created a sexually hostile work environment, such as by greeting her with unwelcome hugs on more than one hundred occasions, and kiss at least once, during a 12-year period. The US District Court granted the employer’s motion for summary judgment, but the Ninth Circuit reversed.  The Ninth Circuit stated that a reasonable juror could find that the supervisor’s conduct was sufficiently pervasive; the frequency of the hugs could be interpreted as out of proportion to the ordinary level of work-place socializing, and is instead abusive.