Hostile work environment cases require the plaintiff to show that the sexual or racial harassment was severe or pervasive. Enough harassment will get you a trial in these case if the employer did not promptly try to remedy the problem. The Second Circuit has been plaintiff-friendly in this area, but some cases are still chucked aside for lack of evidence.
The case is Solomon v. Southampton Union Free School District, a summary order decided on December 10. As the Court of Appeals notes, plaintiff "points to many examples of alleged discriminatory acts to support her hostile work environment claim." But context is crucial in these cases. Viewed in context, a seemingly offensive remark might not create a hostile work environment. That is the case here.
Plaintiff alleged that the principal, Frazier, hung a confederate flag in the school hallways. But there's more to this. The Court of Appeals (Sack, Chin and Lohier) says that "the confederate flag was actually part of Georgia's state flag, which Frazier had hung along with several other state flags." Another example of this is that Frazier told plaintiff to "serve coffee and cake" to her white teaching aides. In isolation, this evidence might also show that Frazier treated plaintiff like a servant, good evidence for a hostile work environment case. But, in her Rule 50-h hearing (conducted when plaintiffs file a Notice of Claim), plaintiff said that "Frazier thought there was a communication problem between Solomon and her teaching aides, and that another school official ... 'chimed in and said, 'you need to pat them on the back, and you should buy them coffee and cake and make nice with them.''" That's not racist behavior, then, but good personnel management.
What we learn is that context is crucial in cases like this. An off-hand comment may seem offensive, but in context, it was not. This is why not every case goes to trial. The courts are looking for the full story behind these cases, and that's why we take depositions. A good examiner can find a way to show that these comments amount to very little.