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In Sexual Harassment Case, Pervasive Hugging Can Create Triable Issue of Fact of Whether Conduct is Abusive; Summary Judgment Reversed

Victoria Zetwick v. County Of Yolo, 2/23/17, 9th Cir.

In this sexual harassment case, Sheriff greeted plaintiff, a female officer, with over 100 hugs over a ten year period; once he gave her a congratulatory kiss that landed partially on her lips; he hugged other women officers but not the male officers; and at least once he acknowledged that there had been complaints about his conduct but then hugged plaintiff anyway.  Plaintiff sued City and Sheriff under Title VII of the Civil Rights Act and California’s anti-discrimination statute, FEHA.  The district court granted City’s and the Sheriff’s motion for summary judgment.  Held: Reversed.

As the Ninth Cir. found, the district court can’t resolve genuine disputes on summary judgment; the trial judge’s job is not to weigh the evidence but to determine whether there is a genuine issue of fact for trial.  To defeat summary judgment requires evidence “such that a reasonable juror drawing all inferences in favor of the respondent could return a verdict in the respondent’s favor.”  In the sexual harassment context that means adducing evidence “that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”  Here, the court held that the pervasiveness of the behavior and the difference in how female and male officers were treated created a genuine issue of fact.

The court made a few additional observations worth noting:

   1.  Contrary to the suggestion of the trial court, there is no black letter rule that “that hugging cannot create a hostile or abusive workplace.”
   2.  The conduct in question has to be severe or pervasive not, as the trial court suggested, severe and pervasive.
   3.  Even though some workplace hugging is ordinary, a reasonable juror could find from the frequency of the hugs, that the Sheriff’s conduct was out of proportion to “ordinary workplace socializing” and had, instead, become abusive. 
   4.  In deciding whether conduct is severe or pervasive, it is critical to consider the “cumulative effect of the conduct at issue.”