EMPLOYER DISCRIMINATION; DISCRIMINATION – Burden of Proof; Evidence

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While a respondent is free to assert the “but for” affirmative defense in any case in which it claims it took adverse action for a reason other than protected activity, it is often appropriate to separately analyze the affirmative defense when the evidence reveals mixed motives. Ultimately, however, the interplay between the charging party’s burden to establish nexus and the respondent’s burden to prove an affirmative defense is less formulaic than it may appear from the Board’s usual articulation of the Novato Unified School District (1982) PERB Decision No. 210, standards. In some cases, there is no need to separately assess the employer’s affirmative defense, if the charging party has already disproven the defense in the course of establishing nexus.