EMPLOYER DISCRIMINATION; DISCRIMINATION – Burden of Proof; Evidence
Single Topic for Decision 2337E
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501.02000 – Burden of Proof; Evidence
Where the employer’s motive is the central issue, the fact finder must often rely heavily on circumstantial evidence and inferences. Only rarely will there be probative direct evidence of the employer’s motivation. An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the discipline or discharge. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. Circumstantial evidence and inferences drawn from the record as a whole are sufficient to establish the employer knowledge element of a discrimination or retaliation violation. The NLRB relies on circumstantial evidence and inferences drawn from the record as a whole to establish employer knowledge of an employee’s protected activity and also will infer employer knowledge of employee protected activity from the small size of the employer’s plant or other facility.