EMPLOYER DISCRIMINATION; DISCRIMINATION – Burden of Proof; Evidence

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When it appears that the employer’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (Martori Bros.); Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22. Thus, in a “mixed motive” case in which the charging party has proven that discrimination or retaliation contributed to the employer’s decision, but the employer asserts that one or more other nondiscriminatory reasons also exist, the burden shifts to the employer to establish as an affirmative defense that it would have taken the same action(s) even absent any protected activity. (NLRB v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402; Martori Bros., supra, 29 Cal.3d at pp. 729-730; Wright Line (1980) 251 NLRB 1083, 1089.) The employer must establish the “but for” affirmative defense by a preponderance of the evidence. (McPherson v. PERB (1987) 189 Cal.App.3d 293, 304.)