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

Single Topic for Decision 2855E

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PERB considers all facts and circumstances relevant to motivation. The following factors are the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) Timing of protected activity in relation to an adverse action is not typically sufficient, by itself, to prove discrimination. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 45-46.) (p. 11.)