uring my training sessions on workplace conduct, the discussion of touching – hugging in particular – garners much debate.

Many people refute that hugging can constitute harassment, arguing it is consensual and not offensive.

In a workplace training session several years ago, the risks associated with touching a co-worker, including hugging, were discussed.

About six months later, the client called and asked me to meet with Fred who attended my training, but was hugging women at a client site, and the client had filed a complaint.

I met with Fred and went over what we discussed in the prior training. Fred confirmed that he attended the training, and recalled my advice, which was “no touching.”

I asked Fred if he understood these recommendations, why was he hugging women at the client site? Fred responded, “Oh those women? It makes them feel so good about themselves.”

The problem for Fred is that he didn’t think I was talking to him when I suggested not to hug other people while working. He thought he was exempt, and that his situation was unique and special.

Touching can lead to a claim of harassment under the federal discrimination law, Title VII of the Civil Rights Act, even if it appears to the person engaging in the conduct that the touching is welcome and consensual.

In the case Victoria Zetwick filed against Edward Prieto, sheriff of Yolo County, the Ninth U.S. Circuit Court of Appeals considered whether the sheriff’s act of hugging employee Zetwick approximately 100 times over a period of 13 years constituted actionable harassment.

The court held it might, and sent the case back to the district court so that jury could decide.

The court, reversing dismissal by the district court, held, “[W]hile it may appear that Prieto’s hugs were ‘common’ in the workplace, and that some other cross gender hugging occurred, neither of those things demonstrates beyond dispute that Prieto’s hugging was within the scope of ‘ordinary workplace socializing.’ A reasonable juror could find, for example, from the frequency of the hugs, that Prieto’s conduct was out of proportion to ‘ordinary workplace socializing’ and had, instead, become abusive.”

While the defendants argued that that the hugging to which Zetwick was subjected was “friendly” and “socially acceptable,” the appeals court held that these conclusions were fact-specific and ripe for a jury to determine after hearing the evidence.

Earlier this month, the Sacramento Bee reported that the case settled for $98,000, in lieu of taking the case to a jury.

In addition to federal discrimination violations, hugging and touching can lead to state law claims of assault and battery, which also can lead to criminal and civil charges.

Under federal law, individuals who commit harassment cannot be personally liable. The way that many individuals are brought into a lawsuit is through a claim of touching.

Most people assume that the hugging is welcome and consensual because the person is not complaining and is seemingly participating.

However, a person is not required to object, or tell you to stop, for the individual to claim harassment. In addition, intent to harass is not a part of the test. It is the conduct, not the intention, that can lead to a claim of harassment, and criminal and civil penalties.

Individuals in the workplace need to consider whether it is worth the end of their careers, reputation and potentially even their freedom to touch other people at work.

They should not assume that conduct is welcome or consensual, or be subjected a misguided belief that their workplace is unique that such conduct is acceptable.

It may seem consensual until it isn’t, then it’s not, and then you might be subjected to a lengthy, costly and difficult legal dispute.

Ask yourself, “Is it worth it?” Then, don’t touch.