EMPLOYER DISCRIMINATION; DEFENSES – In General

Single Topic for Decision 2637S

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In mixed motive cases where an employer’s action is animated both by discriminatory and nondiscriminatory reasons, the Board uses a “but for” test to determine whether the employer would have taken the same action regardless of its improper motivation. Once a charging party establishes a prima facie case of discrimination, the burden shifts to the employer to show by a preponderance of evidence that it would have taken the adverse action regardless of the employee’s protected activity. To prevail on its affirmative defense, the employer must establish that it had a legitimate, nondiscriminatory reason for taking the adverse action and that the reason proffered was, in fact, the employer’s reason for taking the adverse action. (p. 20)