EMPLOYER DISCRIMINATION; DEFENSES – Legitimate Business Purpose/Business Necessity

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If the charging party meets its burden to establish each of the elements of a prima facie case of retaliation, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (pp. 15-16.)