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

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

To establish a prima facie case of retaliation, a charging party must prove, by a preponderance of the evidence, that: (1) an employee engaged in activity protected by the Dills Act; (2) the employer had knowledge of such protected activity; (3) the employer took adverse action against the employee; and (4) the employer took 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. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, pp. 20-21.) If these elements are present, but the evidence also reveals a non-discriminatory reason for the adverse action, the burden shifts to the employer to prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Id. at p. 21.) In such “mixed motive” cases, the employer must show both that it had an alternative, non-discriminatory reason for the adverse action and that its justification was in fact the but-for cause of the adverse action. (Id., adopting proposed decision at p. 30; Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 12-13, 31.) (pp. 28-29.)