EMPLOYER DISCRIMINATION; DEFENSES – Legitimate Business Purpose/Business Necessity

Single Topic for Decision 2387M

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The absence of retaliatory action against other union adherents does not disapprove a prima facie showing of retaliation against the complainant. A discriminatory motive, otherwise established, is not disapproved by proof that the employer did not attempt to weed out every union adherent. However, where employer provided credible and, in many respects, uncontroverted, evidence that it would have selected a union officer for layoff, regardless of her protected conduct, it rebutted prima facie case of discrimination. Even where it has unquestioned discretion to act, a public employer is not free to exercise that discretionary authority in a manner that violates the rights of employees or employee organizations. To rebut an employee’s prima facie case of unlawful discrimination, the employer must show not only that a legitimate, non-discriminatory purpose might justify its action, but that, in fact, it took the adverse action in question for the non-discriminatory purpose it asserts. Where employer provided credible and, in many respects, uncontroverted, evidence that it would have selected a union officer for layoff, regardless of her protected conduct, it rebutted prima facie case of discrimination.