EMPLOYER DISCRIMINATION; ADVERSE ACTIONS – In General

Single Topic for Decision 2106Sa

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* * * OVERRULED IN PART by Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, where the Board clarified that under Campbell Municipal Employees Association v. City of Campbell (1982) 131 Cal.App.3d 416, a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” In the absence of evidence sufficient to trigger the Campbell standard, PERB applies the Novato analysis of nexus factors.* * *

In determining whether an action is adverse to an individual employee under Novato Unified School District (1982) PERB Decision No. 210, the Board applies the standard set forth in Palo Verde Unified School District (1988) PERB Decision No. 689, which requires an objective showing of an adverse effect on the employee’s employment. The discrimination standard in Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, which applies when the employer is alleged to have discriminated between two groups of employees because one of the groups participated in protected activity, cannot be used to establish adverse action under the Novato standard. The Board overruled that part of City of San Diego (2005) PERB Decision No. 1738-M, in which the Board used Campbell to establish adverse action against an individual employee.