Footnote 12: Subsequent to passage of the Restoration Act, the U.S. Supreme Court modified the title VII anti-retaliation standard (Burlington N. & S. F. R. Co. v White, 548 US 53 [2006]). In doing so, however, Burlington still spoke in terms of "material adversity," i.e., conduct that might have dissuaded a reasonable worker from making or supporting a charge of discrimination (id. at 68 [emphasis omitted]). While this was a standard similar to that set forth in section 8-107 (7), it cannot be assumed that cases citing Burlington adequately convey the full import of the City HRL standard, especially because the confusing use of the term "materially adverse" might lead some courts to screen out some types of conduct prior to conducting "reasonably likely to deter" analysis. In fact, to reiterate, section 8-107 (7) specifically rejects a materiality requirement.
Footnote 13: There is no evidence in the record to suggest that in the circumstances presented, the failure to grant such time off was an act reasonably likely to deter a person from engaging in protected activity.