Yvonne T. Massaro v. New York City Department of Education, et al.

Following Burlington Northern & Santa Fe Railway v. White, this Court held that employers are liable for retaliation under the ADEA for conduct that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 548 U.S. 53 (2006). However, this Court has not addressed how Burlington Northern applies to retaliatory hostile work environment claims. The Circuit Courts have examined such claims under two different liability standards—either Burlington Northern (3rd, 5th, and 11th Circuits), or the more stringent severe and pervasive standard (1st, 6th, 9th, and D.C. Circuits) applicable to claims of discrimination, not retaliation. The question presented is:

1. Whether the Burlington Northern standard, which this Court has held governs retaliation claims under the ADEA, applies equally to ADEA claims of retaliatory harassment claims. The Court in Gross v. FBL Financial Services held that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action, and the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. 557 U.S. 167 (2009) The question presented is:

2. Whether ADEA retaliation claims require Plaintiff to show, by a preponderance of the evidence, but-for causation or whether the ADEA retali(i)