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

Single Topic for Decision 2761M


View all topics for Decision 2761M

Full Decision Text (click on the link to view): Full Text

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

PERB uses one of two tests in assessing discrimination cases. If an employer’s conduct facially discriminates based on protected activity, that is “discrimination in its simplest form,” and PERB may infer unlawful discrimination without further evidence of motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) Common examples of facial discrimination include: (1) providing different pay, benefits, or other working conditions based explicitly on union membership or other protected activity; or (2) changing policies in response to protected activity where the operative comparison is not between two different groups of employees, but between an employer’s policies before and after the exercise of protected rights. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 40 (Contra Costa); City of Yuba City (2018) PERB Decision No. 2603-M, pp. 10-11.) Thus, the conduct at issue may, but need not, involve disparate conduct toward different employee groups. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 81; LA Superior Court, supra, PERB Decision No. 2566-C, p. 15.) Although inherently destructive conduct and facial discrimination do not always equate to one another, the same conduct can meet both standards, and in such circumstances the employer’s affirmative defense is the same under the two standards. (See, e.g., Contra Costa, supra, PERB Decision No. 2632-M, pp. 36 & 40.)