EMPLOYER DISCRIMINATION; DEFENSES – Misconduct
Single Topic for Decision 2337E
Full Decision Text (click on the link to view): Full Text
505.03000 – Misconduct
Once the charging party establishes that the responding party was motivated in whole or part by statutorily protected conduct, the burden shifts to the respondent to demonstrate that the employer had, and acted because of, an alternative non-discriminatory reason. Where such alternative reason is alleged to be improper workplace conduct of the charging party, which is claimed to give the employer cause for non-discriminatory discipline or discharge, the employer must prove through independent and competent evidence both the existence of such improper workplace conduct and that this conduct motivated the employer’s response. Recitation by employer agents of a litany of hearsay reports cannot, absent competent, direct and independent evidence, meet the employer’s burden of proof that it acted for a lawful, non-discriminatory reason.