The Tale of Mark The Hugger and Shelly Who Wants No Part Of It
Mark, a supervisor from the accounting department, is a hugger. When he sees a co-worker coming down the hall, he opens his arms wide and wraps them around the person tightly….maybe for a second or two longer than is socially acceptable. Bill and Jenny perceive Mark as harmless, but Shelly, the receptionist, is tense and does not want her supervisor’s hands on her. Shelly has told you, her Human Resources Representative, that Mark hugs “a lot.”
Before you dismiss Shelly ‘s statements with a comment such as, “Oh, Mark’s just being friendly,” or “he hugs everybody,” you should know that Mark’s behavior is being seen, in certain circumstances, as creating a hostile work environment. The 9th Circuit in Zetwick v. County of Yolo (Ninth Circuit, Case No. 14-17341, February 23, 2017), held that a supervisor’s unwanted and pervasive hugs (defined in this case as a hundred hugs over twelve years), can create a hostile work environment.
How Should You Address This Situation?
If you know that Mark has a tendency to hug often, whether you think there is some underlying motive or not, it is best to get in front of this issue before a larger problem presents itself. Chances are, if Shelly is uncomfortable with the hugging, other people may be as well. These employees could bring a claim of failure to prevent harassment, if the company knew about Mark’s constant hugging and did nothing to address it. You should circulate a new harassment policy that makes clear that hugging in the workplace, if frequent and unwelcome, could be the basis of a claim, and not to engage in behavior that could be perceived as unwanted. Give employees an opportunity to ask questions about the policy and gather a written acknowledgment of receipt. Second, address Mark in private, and counsel him that some people are uncomfortable with his hugs and that the employer expects him to refrain from this behavior. Document the counseling. If Mark persists with this behavior, further discipline may be necessary. Next, speak with Shelly, and ask her to document the times that Mark has hugged her that she felt were unwelcome. Tell her that her concerns are being addressed with Mark, though personnel decisions are confidential. Give her a document that states who she can talk to if there are any further incidences with Mark, or anyone else, that make her uncomfortable.
Though hugging is widely accepted in many cultures as a sign of friendship or greeting, it is not comfortable for everyone, depending on who is doing the hugging and in what manner. The Court in Zetwick, above, allowed evidence of the differences between how the supervisor hugged women versus men, and stated that a reasonable juror could conclude that these differences were not just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex,” citing, Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). To avoid a potential costly lawsuit, set the tone with a policy that advises your employees what behavior is acceptable, and do not dismiss complaints by anyone who is uncomfortable with “the hugger.”