Ninth Circuit Revives County Employee’s Case Because Sheriff’s Hugs Could Amount to Harassment

Sexual HarassmentA female county sheriff’s department employee, who allegedly endured 100 or more unwelcome hugs and at least one unwanted kiss on the cheek, got some good news recently when the Ninth Circuit Court of Appeals reversed a lower court’s decision throwing out her case. The appeals court’s ruling cleared the way for the employee to continue pursuing her Fair Employment and Housing Act claim, based upon the hostile work environment created by her supervisor’s unwanted physical contact.

Doubtless, some people can probably relate to the plaintiff in this recent FEHA case. The plaintiff was a county corrections officer in a Northern California county. In 1999, voters elected a new sheriff. In the 13 years that followed, the employee alleged that the sheriff hugged her and other female employees numerous times, and he kissed her at least once. These hugs, according to the employee, were discomforting and caused her to have trouble concentrating at work.

She sued, alleging sexual harassment claims under both state and federal laws. The employer asked the trial court to issue a summary judgment in its favor, and the trial judge sided with the employer. In order to have a case for a hostile work environment, an employee’s claims must show that the alleged sexual harassment was severe or pervasive. The trial judge concluded that the hugging and kissing that this employee received could not possibly satisfy that requirement.

The employee was more successful on appeal. The law says that the conduct at the foundation of a sexual harassment claim must be objectively and subjectively offensive. It has to be something “that a reasonable person would find hostile or abusive, and… that the victim in fact did perceive to be so.”

The appeals court’s ruling was important, both for this employee (because it revived her case and provided her with a renewed opportunity to pursue compensation for the harm she’d suffered) and for employees in general. The appeals court’s ruling in favor of this employee provides a larger win for employees generally who may have suffered harassment in the form of conduct that their employers have tried to characterize as “ordinary workplace socializing.”

In this case, the corrections officer alleged that the sheriff hugged her well in excess of 100 times over the course of her employment, and the hugs were of a chest-to-chest nature, according to the employee. Based on these allegations by the plaintiff, it would not have been impossible for a reasonable jury to decide that, given the cumulative effect of the physical contact at issue, the harassment was sufficiently severe or pervasive to support a sexual harassment claim. This was true in part because the law says that “a hostile work environment is ambient and persistent, and that it continues to exist between overt manifestations.” In other words, even though these hugs contained no additional sexual advances, and they occurred, on average, less than once per month and for only a few seconds each time, the cumulative total of their persistent effect could still have been enough to lead a reasonable juror to side with the employee.

For clear and helpful advice, along with determined advocacy, rely upon the experienced Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. We have been working for many years to help employees who have suffered discrimination or sexual harassment at work pursue the compensation they deserve. For more information regarding how this office can help you, contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

More Blog Posts:

Harassment Not Sufficiently Severe, Pervasive to Allow California Spa Worker to Win Case, Oakland Personal Injury Attorney Blog, Sept. 15, 2015

Employee Allowed to Pursue Sexual Harassment Case, Despite Language in Job Application, Oakland Personal Injury Attorney Blog, April 30, 2014