EMPLOYER DISCRIMINATION; DEFENSES – In General

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In retaliation cases, once an inference of unlawful motivation is drawn, the burden shifts to the employer to establish that it would have taken the action regardless of the employee's protected conduct, citing Novato; p. 11. Participation in protected activity does not insulate or immunize an employee against decisions made by the employer, including adverse employment actions citing Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Ca.3d 721; pp. 11-12. The Board will find the employer's conduct to be unlawful if it determines that the action would not have been taken but for the employee's protected conduct;p. 12.