The 9th Circuit Court of Appeals recently found that a jury, when presented with the evidence, could reasonably conclude that hugging constituted sexual harassment. A female Yolo County correctional officer filed the lawsuit against County Sheriff Edward Prieto, accusing him of engaging in hugs with a “sexual undertone” more than 100 times over 12 years. The lower court rejected the officer’s claim, but the 9th Circuit determined that her argument was not unreasonable. In his defense, Prieto argued that he hugged both male and female correctional officers. He did, however, admit that he may tend to hug female officers more than men simply due to the “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.” The correctional officer disagreed, claiming that the hugs created a hostile work environment that made concentration difficult, triggered stress and anxiety, and forced her to rely on medications to sleep at night. The court, in reversing the lower court’s decision, said that hugging “can create an abusive work environment if it is both unwelcome and pervasive.”
California Sexual Harassment Laws
Sexual harassment is illegal under California’s Fair Employment and Housing Act. The Act divides sexual harassment into two categories: Quid Pro Quo and Hostile Work Environment.
Quid Pro Quo sexual harassment occurs when terms of employment are tied to submitting to unwanted sexual advances. These terms could be beneficial or threatening. Offering a raise in return for sexual favors and threatening a demotion for refusing sexual advances are both examples of this type of sexual harassment.
Hostile Work Environment sexual harassment occurs when, as in the case above, a victim’s work environment is made to be hostile, offensive, oppressive, intimidating, or abusive due to pervasive conduct. For conduct to qualify as “pervasive,” it must have occurred on more than one occasion, be part of a pattern, or of a repeated, routine, or generalized nature. In determining if conduct is pervasive courts will weigh the nature of the conduct, the frequency at which is exhibited or the number of days on which it is performed, and the situational context.
Sexual Harassment From Unwanted Touching
California law prohibits employees from engaging in physical contact with other employees when that contact is unwanted and based on the person’s sex or sexual attraction. Unwanted touching is subjective, and it often falls to the court to analyze the facts and circumstances of the specific case before them. There is no bright-line test that can help courts determine if behavior crosses the line from friendly to harassing in nature. Many time, the plaintiff and defendants will have markedly different perceptions of the touching and its appropriateness. Generational differences may also play a role, where older employees do not consider physical contact to be harassing, but rather displays of power in an innocuous manner.
In reviewing the case above, the 9th Circuit was not taking its first stab at narrowing down behavior that could be considered sexual harassment. Reversing the lower court did not confirm that hugging is, in fact, an act that triggers sexual harassment. Rather, the 9th Circuit merely found that a jury, when presented with the plaintiff’s evidence and testimony, could reasonably decide that in the case before them it was harassment. The 9th Circuit has issued similar rulings in cases where unwanted touching included crotch-grabbing, touching another’s buttocks, repeatedly touching a co-worker’s breast, rubbing a co-worker’s inner leg, and touching genitals.
No Sexual Motive Required
Again, the nature of the unwanted touching is often subjective. Hugging, for example, may seem innocuous, but when repeatedly forced upon an unwilling employee, that contact may have serious consequences. Sexual harassment, interestingly, does not require a defendant to have a sexual motive. Rather, sexual harassment can stem from any contact directed at a person due to a characteristic that meets the state’s broad definition of sex. Sex is a term broadly defined to encompass a person’s gender, pregnancy, childbirth, or pregnancy-related condition. Sheriff Prieto argued that his hugs were harmless and perhaps directed more frequently at women simply due to social constructs. However, according to the law, contact based on sex – much like those hugs – can be considered harassment.
Consequences of Sexual Harassment
California takes sexual harassment seriously and has imposed a number of safeguards intended to dissuade unwanted touching and punish those who violate the law. Generally, under the Fair Employment and Housing Act, individual employees are not subject to liability for their actions. There is, however, an exception when it comes to sexual harassment. Employees, supervisors, and companies may all be held liable for sexual harassment under the law.
If a defendant is found to be guilty of sexual harassment in California, he or she may be on the hook for significant financial damages. If the female correctional officer prevails, she may be entitled to recover:
- Compensatory damages to essentially reimburse her for verifiable out of pocket costs and calculable losses, such as back-pay, past and future benefits, and medical expenses;
- Emotional damages;
- Punitive damages if the sexual harassment was oppressive, fraudulent, or conducted with malice; or
- Injunctive relief.
Plaintiffs in California are not required to show that they actually suffered damage as a result of the alleged sexual harassment. Rather, the actions of the defendant are enough to trigger liability.