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Martin Flumenbaum and Brad S. Karp Martin Flumenbaum and Brad S. Karp

In Davis-Garett v. Urban Outfitters, 921 F.3d 30 (2d Cir. 2019), decided this past April, the U.S. Court of Appeals for the Second Circuit clarified the standard for plaintiffs bringing claims of discriminatory retaliation under the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to retaliate against an employee by taking any adverse employment action in response to reporting age discrimination, among other types of protected activity. 29 U.S.C. §623(d). In a unanimous opinion, written by Judge Amalya Kearse, and joined by Chief Judge Robert Katzmann and Judge Denny Chin, the court reversed the district court’s grant of summary judgment in favor of defendants and remanded the case for trial of the plaintiff’s federal claims and additional consideration of her state law claims. For the first time, the court applied the Title VII retaliation standard established by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), and held that to prove a claim for discriminatory age retaliation, a plaintiff is not limited to demonstrating discriminatory actions that affect “terms and conditions of employment,” but can recover by showing that a reasonable employee might have been dissuaded from making or supporting a charge of discrimination based on the alleged retaliatory action taken.

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