EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Other/In General

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Conduct which “directly and unambiguously penalizes or deters protected activity” may appear in a simultaneous form, as where an employer is alleged to have offered, provided or maintained differential pay, benefits, hours, or working conditions between different groups of employees on the basis of union or other protected activity. Facially discriminatory conduct may also be sequential or non-contemporaneous, as when an employer changes policy in response to protected activity. For sequential discrimination, the relevant baseline for comparison is not different treatment between groups of employees, but between the employer’s policies before and after the exercise of protected rights. Here, the allegation is that the University laid off all Young Musician’s Program Instructors in response to the protected activity of some Program employees and their representative in asserting their collectively-bargained rights and prosecuting the Churning Grievance. This allegation is more aptly characterized as one involving sequential discrimination or reprisal for protected activity, rather than simultaneous discrimination against Program Instructors vis-à-vis other, University employees about whom no evidence was presented. (pp. 81-82.)