EMPLOYER DISCRIMINATION; DISCRIMINATION – In General; Elements of Prima Facie Case

Single Topic for Decision 0210E

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The NLRB and courts have generally considered employer discriminatory conduct to be covered by section 8(a)(3) of the NLRA, whereby it must be proven that the employee was engaged in protected activity and that the employer's conduct was motivated by that participation. Because retaliatory conduct is inherently volitional in nature, the same requirements are appropriate under EERA; pp. 5-6. Where the case revolves around the existence of both lawful and unlawful motives, the Board must determine whether the employer would have taken its action had the employee not engaged in protected activity; p. 16. Employer must have actual or imputed knowledge of the employee's protected activity.