EMPLOYER DISCRIMINATION; DISCRIMINATION – In General; Elements of Prima Facie Case

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PERB uses one of two tests in assessing discrimination cases. When the conduct at issue is not facially discriminatory, PERB applies the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 76; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, pp. 14-15.) To establish a prima facie case under the Novato framework, a charging party must prove four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more of the employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26.) If the charging party has established a prima facie case but the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent has the burden to prove that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Ibid.)