EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Other/In General

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An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.)