EMPLOYER DISCRIMINATION; DISCRIMINATION – In General; Elements of Prima Facie Case
Single Topic for Decision 2453E
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501.01000 – In General; Elements of Prima Facie Case
To establish a prima facie case of retaliation in violation of EERA section 3543.5(a), the charging party must show that: (1) the employee exercised rights guaranteed by EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took action against or adverse to the interest of the employee; and (4) the employer acted because of the employee’s exercise of the guaranteed rights. 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 adverse action. 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.