EMPLOYER DISCRIMINATION; DEFENSES – In General

Single Topic for Decision 2675E

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Once a charging party has established a prima facie case of retaliation by a preponderance of the evidence, the burden shifts to the respondent to prove: (1) that it had an alternative nondiscriminatory reason for the challenged action; and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” [Citation.] Where there is evidence that the respondent’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.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” Here, the evidence showed that the employer acted because of performance concerns rather than to punish protected activity. Because the weight of the evidence supported the employer’s stated reasons for its action, there was no evidence that those reasons were a pretext for retaliation. (Adopting proposed decision at pp. 53-54, 57.)