A federal court in Virginia recently found that a former employee of the Department of Veterans Services (DVS) presented enough evidence that her supervisor’s hugs and kisses comprised an assault and battery against her, but not enough to establish sexual harassment or hostile work environment under Title VII. Back v. Commonwealth of Virginia, et al., No. 7:17-cv-00477 (W.D. Va. 11/27/19).
Back worked as a Veterans Services Representative for the Virginia DVS. Her immediate supervisor was Granger, who had “a history of physical contact with DVS employees, including hugging and kissing[.]” Although for most of her employment Back worked in a separate office from Granger, they crossed paths from time to time.
Some of the DVS employees regarded Granger’s hugging (and occasional kissing) as “his thing,” his “nature,” “fatherly,” “harmless,” and reminiscent of a “paw paw’s” hugs. Others, including Back, regarded the contact as uncomfortable and inappropriate, though Back sometimes returned the hugged and usually did not tell management.
Management was aware of the conduct, but did not request Granger to stop until after receiving complaints of sexual harassment. Granger responded that the request was petty and proceeded to hug employees, including by giving Back a “no hug hug.” Back’s specific objections to the hugs/kisses came to light during another employee’s sexual harassment investigation. In response, DVS issued a “no hugging” policy with an ostensible side of sarcasm (“Yup, you read that correctly” and “I don’t expect our RD’s to be the ‘hugging police.’”). Back went out on short term disability only to face mocking by other employees upon her return. She brought sexual harassment and hostile work environment claims under Title VII and assault and battery claims against the Commonwealth and Granger individually.
The court dismissed Back’s Title VII claims, in part because Granger’s hugs and kisses of Back were too infrequent (roughly four times a year) to meet the standard for a hostile work environment. Back did not appear uncomfortable to other employees when Granger hugged her, and she chose to visit Granger even though she did not need to. She also admitted that she never discussed her displeasure with management, and that she sometimes hugged him back.
As to the assault and battery claims, however, the court found enough evidence to send them to a jury. Simply put, Back’s testimony that Granger’s hugs and kisses were unwanted was sufficient to establish Granger committed an offensive contact and put Back in reasonable apprehension of imminent battery. The court then found that a jury could conclude from the evidence that the Commonwealth was liable for Granger’s conduct because there was a dispute over whether Granger used his supervisor position to hug and kiss employees and that DVS allowed him to do it.