Boorish comments do not a sexual harassment case make

What does it take to make out a sexual harassment case? These cases rely on the totality of the evidence, making it difficult to predict when the court will grant or deny summary judgment. This case tells us when the case is too weak for a jury. The retaliation case doesn't cut it, either.

The case is Christofaro v. Lake Shore Central School District, a summary order decided on April 2. Plaintiff says that, over a seven-year period, her former supervisor, Redman:

(1) occasionally commented on Cristofaro’s physical appearance; (2) participated in a bet with three other male employees as to when Redman would be able to engage Cristofaro in sexually explicit conversation; (3) once made a non-sexual sarcastic or derogatory remark to Cristofaro in front of a colleague; (4) beckoned to Cristofaro in the halls by yelling “hey,” curling his finger in her direction, and engaging her in conversation unrelated to her work once a month for three-and-a-half years; (5) threw a piece of paper at Cristofaro in a faculty meeting; (6) lied about Cristofaro to a colleague; and (7) briefly made contact with the side of her body while standing next to her.

The supervisor may have been boorish, but he did not create a hostile work environment. The Court of Appeals (Sack, Raggi and Droney) notes that the supervisor did not touch plaintiff or ask for sexual favors. "The record indicates only limited, infrequent, and at worst, mildly offensive conduct falling well short of the severity and frequency required to raise a triable issue of fact as to the existence of an objectively hostile work environment." Other than one comment about plaintiff's physical appearance and the "sex talk" bet, the offensive conduct was not based on sex. While plaintiffs can make out a hostile work environment case, in part, through gender-neutral comments, "there must be a circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory." That's the rule in Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).

Plaintiff also claims management retaliated against her for filing a discrimination charge with the State Division of Human Rights. Plaintiff was denied a volunteer position at the school district as a dance-team advisor. In order to make out a retaliation claim, you need an "adverse action." An adverse action is something that management did to you that would dissuade a reasonable employee from complaining about discrimination. I guess the Court of Appeals does not think it's a big deal to be a volunteer dance instructor. "No reasonable employee would have been deterred from making or supporting a charge of discrimination based on Redman’s refusal to give the employee an unpaid and effectively volunteer position as co-advisor to a student dance team. Other than being denied the opportunity to volunteer as the team advisor, none of the terms and conditions of Cristofaro’s employment were altered by Redman’s decision."