Fourth Circuit Concludes That Non-Sexual Hugs and Kisses Don't Constitute a Hostile or Offensive Work Environment

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The U.S. Supreme Court has made clear that federal courts will not serve as a super HR department for employees who complain about unpleasant work conditions. Every worker is expected to tolerate a certain level of obnoxious or unsolicited behavior. Last month in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) affirmed the dismissal of a sexual harassment suit filed by an employee upset with her supervisor’s overly familiar behavior.

In Sowash v. Marshalls, the plaintiff complained that her openly gay assistant manager constantly touched her arm, hugged her, and on one occasion kissed her on the cheek. The assistant manager received a written warning following an internal complaint, but the plaintiff filed suit after he complimented her appearance, alleging sexual harassment, assault, and battery.

The Fourth Circuit affirmed the dismissal of the claim, finding that, as a matter of law, the plaintiff’s claims were not severe or pervasive enough to constitute actionable sexual harassment under Title VII. Looking at the totality of the circumstances, the court agreed that there were no sexual innuendos, vulgar comments, or other indicia of harassment. The experiences of the plaintiff’s co-workers were not relevant to this analysis because she was unaware of this alleged conduct during her employment.

This decision does not mean that employers should ignore complaints about supervisors or co-workers who do not respect other person’s boundaries. Being a “hugger” by nature is not an excuse for this behavior. Harassment training should include an explanation that some people do not like to be touched, and that employees’ personal space and boundaries need to be respected.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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