EMPLOYER DISCRIMINATION; DEFENSES – In General

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Context is always relevant in determining whether an adverse action was unlawfully motivated by protected activity. (p. 17.) An employer may thus establish its affirmative defense if its adverse action, taken, in part, in response to protected activity, was also motivated by other non-discriminatory reasons. (p. 17.) The employer failed to do so here because it based its adverse action on an employee’s e-mail that was different from the inappropriate conduct and misbehavior of which he had previously been accused. (p. 18.) The employer further explicitly stated that it was taking adverse action in direct response to the employee’s protected activities. (pp. 18-19.)