Just so you know, the Ninth Circuit Court of Appeals just reminded us that there is no black letter rule that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. (I talked about this case before, but now this is a published opinion, so let’s look at it again.)

This defense worked temporarily for Yolo County Sheriff Edward G. Prieto, who was accused of hugging and kissing a female sergeant under his command. Plaintiff claimed Prieto hugged her at least 124 times over a 12-year period. And he even kissed her once.

In the federal district court, Prieto argued the “black letter law” cited above, which, we now know, is not “black letter law.” The district court granted his motion for summary judgment, but the Ninth Circuit revived the case reminding Prieto that the appropriate legal standard is whether the defendant’s conduct in this case was “severe or pervasive” and not “severe and pervasive.” The Court said that summary judgment is appropriate only if the conduct was neither severe nor pervasive enough to alter the conditions of plaintiff’s employment.

The Court also held that there is no mathematically precise test to determine whether or not defendant’s conduct was sufficiently hostile. That’ll stop a lot of summary judgments in their tracks!

So there you have it. It’s not the 1960’s Mad Men anymore.

Zetwick v. County of Yolo
2017 U.S. App. LEXIS 3260 (February 23, 2017)