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

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To prove discrimination, a charging party must prove by a preponderance of the evidence that the respondent acted with an improper motive, intent, or purpose. (Contra Costa Fire Protection District (2019) PERB Decision No. 2632-M. p. 40 (Contra Costa).) A charging party may do so using either of two frameworks. First, under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 and its progeny, the charging party’s prima facie case requires each of 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 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 and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party establishes a prima facie case but the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, 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. (Id. at p. 16.) Alternatively, if 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. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 27; 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; and (2) changing policies in response to protected activity. (City of Yuba City (2018) PERB Decision No. 2603-M, pp. 10-11 (Yuba City).) 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.) If an employer extends a benefit or increase to an unrepresented employee group while withholding it from a represented employee group (or vice versa), that can establish discrimination under either or both above standards, unless the difference is legitimately based on a non-discriminatory business reason. (Contra Costa, supra, PERB Decision No. 2632-M, pp. 41-42.) The employer has the burden to prove that the difference is based on a non-discriminatory reason, which may include differing skills, qualifications, or duties, market pressures, promotional incentives, or lawful collective bargaining in which a union has exerted pressure to achieve better terms than other employee groups, traded one benefit for another, or rejected a nondiscriminatory offer and thereby fallen behind other groups. (Id. at pp. 38-42 & 51-52; Yuba City, supra, PERB Decision No. 2603-M, pp. 11-13; LA Superior Court, supra, PERB Decision No. 2566-C, pp. 15-17.) (pp. 15-17.)