EMPLOYER DISCRIMINATION; DEFENSES – In General

Single Topic for Decision 2337E

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Upon proof that anti-union animus played a part in the employer’s decision to act, the burden then shifts to the employer to prove that its actions would have been the same notwithstanding the employee’s having engaged in protected activity and the employer’s anti-union animus. In such cases, the employer has both the burden of going forward with the evidence and the burden of persuasion. Proof of an alternative, non-discriminatory reason for the challenged action is insufficient standing alone to overcome the prima facie case. The employer must prove that it had both an alternative non-discriminatory reason for its challenged action, and that the challenged action would have occurred regardless of the employee’s protected activity and the employer’s anti-union animus. Once a charging party establishes a prima facie case of retaliation, the burden shifts to the respondent to establish both: (1) that it had an alternative non-discriminatory reason for the challenged action, and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. A responding party must prove up its affirmative defense through persuasive evidence. To demonstrate an affirmative defense to unlawful discrimination, independent evidence is required to establish both the existence of an alternative, non-discriminatory reason for challenged discipline, and that the employer acted because of that reason and not because of the protected conduct of the employee. Because out-of-hearing statements describing employee’s alleged improper workplace conduct cannot be cross-examined, we find the hearsay and double hearsay testimony by District supervisors insufficiently reliable to establish the District’s affirmative defense. An employer defending against a prima facie case of retaliation cannot simply present a legitimate reason for its action, but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. The crucial factor is not whether the justification put forward by the employer was good or bad, but whether it was honestly invoked and was, in fact, the cause of the employer’s challenged action. PERB must analyze thoroughly and completely the justification for the action presented by the employer in order to determine whether the justification constituting an employer’s affirmative defense was honestly invoked and whether the employer’s proof establishes that its justification was in fact the cause of the employer’s action. When the burden in a PERB hearing shifts to an employer to establish an affirmative defense to a charge of discrimination or retaliation, the employer must demonstrate that it exercised its statutory or common law discretion in a manner consistent with the employee’s rights under our statutes. We acknowledge that such demonstration imposes on an employer a greater burden of proof than would be required to sustain a routine discharge within its discretion where there has been no allegation of unlawful motivation. PERB’s duty is to analyze thoroughly and completely the justification for the action presented by the employer and that in so doing PERB may inquire fully into all issues bearing on the employer’s burden to establish that employer’s affirmative defense was honestly invoked and its justification was in fact the cause of the employer’s action. The employer’s defensive burden to a charge of discrimination or retaliation is not limited by the extent of the employer’s statutory or common law duty to the employee(s), but is measured rather by the extent and persuasiveness of the employee(s) prima facie case which a successful affirmative defense must either meet or exceed.