All notes for Subtopic 505.11000 – Legitimate Business Purpose/Business Necessity

DecisionDescriptionPERC Vol.PERC IndexDate
2712M City and County of San Francisco
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
If the charging party meets its burden to establish each of the elements of a prima facie case of retaliation, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (pp. 15-16.) more or view all topics or full text.
05/06/20
2632M * * * JUDICIAL APPEAL PENDING * * * Contra Costa County Fire Protection District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Under Campbell, if an employer’s discriminatory conduct is “inherently destructive” of protected rights, no further proof of improper motivation is needed and we may find the employer guilty of an unfair labor practice even if it introduces evidence that its conduct was motivated by legitimate business considerations. However, even if we were to find the District’s conduct caused only comparatively slight harm to protected rights, we would still find merit to the present charge and complaint, given the combination of direct and circumstantial evidence of discrimination and the pretextual nature of the District’s explanations. The District’s post-hoc arguments, including its alleged financial concerns and its desire to maintain certain benefits for higher-ranking unrepresented managers so as to preserve promotional incentives, have already been considered and found unpersuasive. more or view all topics or full text.
4315003/07/19
2632M * * * JUDICIAL APPEAL PENDING * * * Contra Costa County Fire Protection District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
An employer who automatically and pre-emptively excludes union-represented employees from an otherwise negotiable benefit granted to unrepresented employees unlawfully discriminates and interferes with protected rights, because its conduct indicates that employees who choose union representation will automatically forfeit participation or eligibility for the benefit, and/or that the benefit is not subject to negotiation. more or view all topics or full text.
4315003/07/19
2654E Claremont Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Once a charging party establishes a prima facie case of discrimination or retaliation, the respondent must prove, by a preponderance of the evidence, that it would have taken the same adverse action even if the employee had not engaged in the protected activity. The employer must establish both that it had an alternative, non-discriminatory reason for taking the adverse action, and that its proffered reason was, in fact, the actual reason for taking the adverse action. (p. 16.) The outcome of a discrimination or retaliation case is determined by the weight of the evidence supporting each party’s position. (p. 17.) Once the charging party establishes its prima facie case, PERB weighs the evidence supporting the employer’s alternative, non-discriminatory reason justification for the adverse action against the evidence of the employer’s unlawful motivation. (pp. 16-17.) The fact that an employer takes adverse action in response to protected activity does not then preclude it from proving that it was motivated by other non-discriminatory reasons and would have taken the same action even absent the protected conduct. (p. 17.) more or view all topics or full text.
07/10/19
2654E Claremont Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Context is always relevant in determining whether an adverse action was unlawfully motivated by protected activity. (p. 17.) An employer may thus establish its affirmative defense if its adverse action, taken, in part, in response to protected activity, was also motivated by other non-discriminatory reasons. (p. 17.) The employer failed to do so here because it based its adverse action on an employee’s e-mail that was different from the inappropriate conduct and misbehavior of which he had previously been accused. (p. 18.) The employer further explicitly stated that it was taking adverse action in direct response to the employee’s protected activities. (pp. 18-19.) more or view all topics or full text.
07/10/19
2622E Cabrillo Community College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.) more or view all topics or full text.
4312602/04/19
2611M County of Orange
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
PERB examines the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.) more or view all topics or full text.
4310112/19/18
2625E San Diego Community College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Employer established that it would not have offered adjunct faculty member a class assignment even if he had not engaged in protected activity where the undisputed evidence showed the department chair selected the best adjuncts for the needs of the students and demands of each course for each adjunct assignment and employee did not raise a specific critique of chair’s method for selecting adjuncts, even though employee argued he was at least as qualified as selected adjunct faculty. more or view all topics or full text.
4313102/20/19
2494M City of Davis
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. The City’s interest in ensuring its firefighters are properly trained, regardless of the skill level and competence of the firefighters, is a legitimate one. Employer established a legitimate, non-discriminatory reason for placing fire chief on performance improvement plan where chief was significantly deficient in training hours; was not timely completing logs and reports on station maintenance, incidents, and apparatus checkouts; and was not timely performing quarterly fire prevention inspections. more or view all topics or full text.
413306/30/16
2387M City of Oakland
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
The absence of retaliatory action against other union adherents does not disapprove a prima facie showing of retaliation against the complainant. A discriminatory motive, otherwise established, is not disapproved by proof that the employer did not attempt to weed out every union adherent. However, where employer provided credible and, in many respects, uncontroverted, evidence that it would have selected a union officer for layoff, regardless of her protected conduct, it rebutted prima facie case of discrimination. Even where it has unquestioned discretion to act, a public employer is not free to exercise that discretionary authority in a manner that violates the rights of employees or employee organizations. To rebut an employee’s prima facie case of unlawful discrimination, the employer must show not only that a legitimate, non-discriminatory purpose might justify its action, but that, in fact, it took the adverse action in question for the non-discriminatory purpose it asserts. Where employer provided credible and, in many respects, uncontroverted, evidence that it would have selected a union officer for layoff, regardless of her protected conduct, it rebutted prima facie case of discrimination. more or view all topics or full text.
392308/04/14
2376E Rocklin Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
School district’s proffered affirmative defense that school nurses would have been laid off for budgetary reasons even if the absence of protected activity was not supported by the weight of the evidence; given that the school district was required by the state to provide health services for the care of children and the cost savings from the proposed alternate health services delivery option was presented to the school board without costing out the elements and comparing it to the existing system, the school district’s proffered budgetary reason for the layoffs was determined to be not honestly invoked nor the true reason for the layoffs when weighed against the evidence of retaliatory motive. more or view all topics or full text.
39306/12/14
2376E Rocklin Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
School district’s proffered affirmative defense that the existing health services delivery system required restructuring because of all the problems encountered by the school district in dealing with the school nurses on workplace issues was not supported by the weight of the evidence; given that the school district was informed that the best health services delivery option would be to maintain the status quo and that the very issues at the heart of the nurses’ protected activities were the same reasons cited by the school district in justifying the layoffs, the school district’s proffered restructuring reason for the layoffs was determined to be pre-textual and not the true reason for the layoffs. more or view all topics or full text.
39306/12/14
2235E Santa Ana Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Record established that employer made decision regarding substitute employee’s employment based upon the fact that he falsified his timecard and that other employees had similarly been terminated for timecard falsification. Thus, employer established that it would have terminated employee’s employment even if he had not engaged in protected activity. more or view all topics or full text.
3611902/07/12
2211M City of Santa Monica
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Once a prima facie case is established, employer bears the burden of proving it would have taken the adverse action even if the employee had not engaged in protected activity. The issue before the Board is not whether the employer had just cause to discipline or terminate the employee, but rather whether the true motivation behind the employer’s decision was the employee’s exercise of protected activity. Thus, the Board does not determine whether the employer was correct in its determination that employee violated safety procedures, or whether good cause existed to terminate his employment. Weighing the evidence that probationary employee’s supervisors were dissatisfied with his performance throughout his employment against any possible inference of retaliatory motive, Board does not find that employee’s protected activity was the true motivation for the recommendation to terminate his probationary employment. more or view all topics or full text.
366610/24/11
2099I Region 2 Court Interpreter Employment Relations Committee, et al.
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
In the event a charging party establishes a prima facie violation of the Court Interpreter Act section 71802(c)(3) at a formal hearing, the employer will be afforded an opportunity to demonstrate that its disparate treatment was taken for a legitimate reason, notwithstanding evidence of unlawful motive. more or view all topics or full text.
345302/25/10
2121M Omnitrans
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Employer proved by a preponderance of the evidence that its denials of union president’s requests for union leave were based on a legitimate operational need. Unrebutted evidence showed transit agency was suffering manpower shortage at time leave requests were denied. That agency allowed a few employees to attend a focus group meeting for a few hours on a few days during the same period did not disprove the claimed manpower shortage. more or view all topics or full text.
3411006/25/10
2072S State of California (Department of Social Services)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
The State met its burden of establishing that it was motivated by legitimate business reasons in deciding first to place employee on administrative time off (ATO) and then to reject him on probation. more or view all topics or full text.
3317710/27/09
2020M County of Yolo
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
A County of Yolo (County) employee alleged she was involuntarily reassigned in retaliation for having engaged in protected activity. The reassignment was from a position in which she was receiving a salary differential to which she was not entitled to a position where she could retain the salary differential, but would lose her alternate work schedule. The Board affirmed the ALJ’s dismissal of the complaint, finding that, even if a nexus between the employee’s protected activity and the reassignment existed, the County would have taken the action regardless of the protected activity. Allowing the employee to retain the salary differential in the old position would have exposed the County to liability of granting the same differential to similarly situated employees, and caused significant harm to the County’s budget and employee morale. more or view all topics or full text.
337504/30/09
1920M Jurupa Community Services District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
An employee’s door slamming, making derogatory comments towards co-workers, not following the District’s sick leave policy, filing a travel grievance, making a false accusation, and getting into a physical altercation were all cited by the District as reasons for his termination. The Board finds these reasons, however, to be pretext, some exaggerated, some untrue, some pulled out of a hat, some based solely on hearsay, and all cited in an attempt to mask the true motivation for the discharge, i.e., the employee’s filing a grievance. more or view all topics or full text.
3113608/10/07
1880E Oakland Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
A probationary teacher engaged in a personal attack on his principal and her administration after he learned that he would not be reelected, and his decisions to express his personal grievances in a memo and at faculty and leadership committee meetings do not merit protected status under EERA. The District met its burden and demonstrated that it would have placed a teacher on administrative leave even if he had not engaged in protected activity, as he was perceived as a safety threat to other faculty members. more or view all topics or full text.
314501/11/07
1605E Las Virgenes Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Board dismissed charge alleging unlawful discrimination where District demonstrated that employee would have been transferred based on a history of problems unrelated to any protected activity. more or view all topics or full text.
289202/25/04
1561E Bellevue Union Elementary School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Mere lack of good cause for non-reelection of employees does not, by itself, support an inference of unlawful animus. District was within its rights to establish a policy of granting tenure only to those teachers receiving superior performance ratings, as opposed to merely satisfactory ones. Accordingly, District established that it would have not reelected the employees even absent any protected activity. more or view all topics or full text.
282412/08/03
1375E Pomona Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
The preponderance of the evidence also shows that the employee would have been refused summer school employment regardless of any protected activity, because the District had a policy against selecting temporary and/or emergency credentialed teachers. Even assuming the burden of proof shifted to the District, the preponderance of the evidence shows that the employee would have been refused a contract for the math/science position regardless of any protected activity, because the District's credentialing specialist determined that she did not qualify for the position. Termination letter citing Charging party's actions as unprofessional and which finds charging party's out bursts, intimidating letters, and demands to meet does not provide evidence of nexus. Passing reference to union falls far short of furnishing evidence that employee's union contacts (or her attempts to represent herself) were the District's true motive for terminating her employment. more or view all topics or full text.
243106002/28/00
1339S State of California (Department of Corrections)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Failure of employer to "invite" union as opposed to other outside groups to use the meeting room is not a valid defense to a claim of interference based on discriminatory denial of access. more or view all topics or full text.
233014608/03/99
1313S State of California (Department of Personnel Administration)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Employer's strict application of contract provision cannot be considered discrimination. more or view all topics or full text.
233005501/29/99
0833E Los Rios Community College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
An employer's refusal to commit an illegal act is not an adverse action under EERA; p. 4. more or view all topics or full text.
142116008/10/90
1323E Ventura County Community College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Where coworkers and supervisor had expressed fear of employee, employee had recently pled no-contest to spousal abuse charges, and college dean had observed employee's anger and frustration during meeting, Board found that employee's behavior, rather than protected activity, motivated college dean's decision to issue memorandum recommending psychiatric evalution of employee; pp. 10-11. Where college began investigation into employee's fitness for duty prior to employee's protected activity and relied on outside assessment of employee's potential for violence in ordering psychiatric evaluation, Board found that employee's protected activity did not motivate college's decision to place employee on administrative leave pending psychiatric evaluation; pp. 11-12. more or view all topics or full text.
233009404/08/99
1298E Mountain Empire Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
In order to demonstate business necessity, the employer must show that it would have made the decision to transfer the employee in spite of his protected activity; demonstrating the reasonableness of its attempts to mitigate the effects of the adverse action is insufficient; p. 4. more or view all topics or full text.
233001110/30/98
1259E Fall River Joint Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
In case where the record is clear that the relationship between the employee and his supervisor has deteriorated significantly, the Board accepts the District's conclusion that transfer of said employee was in the best interest of the District's educational program; said transfer would have occurred regardless of the teacher's EERA protected activity and was not motivated by the District's desire to retaliate against the teacher for that activity; pp. 23-24. more or view all topics or full text.
222908204/08/98
1188H Regents of the University of California (University Professional and Technical Employees)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
During the post-election, pre-certification period, the employer must exercise caution in making wage changes. The employer may not change wage rates to avoid a bargaining obligation after certification, but may make a change that is clearly justified by factors other than the pendency of the certification; p. 32. more or view all topics or full text.
212806703/19/97
1087H Regents of the University of California (Costa)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
A drastic fiscal shortfall necessitating a reduction in staff demonstrated a legitimate business purpose to lay off the most expendable position; p. 11, proposed dec. more or view all topics or full text.
192606503/01/95
1052E Scotts Valley Union Elementary School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Sufficient evidence exists showing that communication between a teacher and administration officials was causing a disruption at the school and a transfer would have occurred notwithstanding her involvement in protected activities; p. 5. more or view all topics or full text.
182511508/24/94
0957E Los Angeles Unified School District (Kaady)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
The mere fact an employee is or was participating in union activities does not give him immunity from routine employment decisions or insulate him from discharge for misconduct. Martori Brothers Distributors v. Agricultural Labor Relations Board (1981) 29 Cal.3d 721 [175 Cal.Rptr. 626]; p. 21, proposed dec. more or view all topics or full text.
172400011/18/92
0895E Sonoma County Junior College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Given the vague and imprecise reasons for failure to hire Charging Party, it was found that the explanation for his nonselection was pretextual; p. 22, proposed dec. more or view all topics or full text.
152213208/12/91
0845H California State University, Fresno
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
No operational necessity defense where there was inconsistent testimony and employer failed to meet the most minimum of standards in documenting employee's performance throughout probationary period; p. 18. more or view all topics or full text.
142119310/04/90
0805H Trustees of the California State University (Statewide University Police Association)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Employer failed to prove legitimate operational purpose due to its failure to present credible evidence of insubordination, sexual harassment and employee's involvement in a sexual affair rumor; pp. 27-29. more or view all topics or full text.
142109004/17/90
0778E Carlsbad Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Legitimate Business Purpose. An employer must be given broad discretion if filling a confidential position. Under the EERA, an employer may consider past protected conduct when selecting an employee for a confidential position. more or view all topics or full text.
142100411/21/89
0748E Los Angeles Community College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Unlawful motivation is not present where an employer followed customary practice in the investigation of allegations of internal misfeasance and the necessary release of confidential information supplied by the charging party employee; pp. 18-20, proposed dec. more or view all topics or full text.
132014506/28/89
0689E Palo Verde Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
In face of threat of a teacher's strike, District has inherent interest in preserving security of its facilities and protecting integrity of its managerial communications and is sufficient to justify relocating office of union activist. more or view all topics or full text.
121912106/30/88
0640H Regents of the University of California
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Reorganization plan developed and implemented for academic reasons, not due to protected activity of lecturers. more or view all topics or full text.
121900712/10/87
0505E Santa Paula School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
District failed to show legitimate business purpose for transfer, where transferee's skills not utilized and replacement immediately hired. more or view all topics or full text.
91612805/07/85
0319H Regents of the University of California (California State Employees Association, Chapter 41)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Office workload and staffing situation justified change of duties of position. more or view all topics or full text.
71417706/10/83
0310H Regents of the University of California (California State Employees Association)
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
University's decision to suspend was based on legitimate business justification regarding employee's work hours; pp. 32-33, proposed dec. As employee had ample notice of the deficiencies, University had sufficient evidence of business justification supporting its demotion decision; pp. 34-35, proposed dec. more or view all topics or full text.
71415605/19/83
0288E San Leandro Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
As District's rationale in transferring charging party was more indicative of unlawful motivation than legitimate justification, Board held District discriminatorily transferred charging party because of his protected activity; p. 10. more or view all topics or full text.
71407902/24/83
0272E Rio Hondo Community College District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
As District's actions were justified by criteria wholly unrelated to the employees' protected activity, Board concluded that District would have acted as it did even in the absence of prior protected activity; p. 5. more or view all topics or full text.
71402812/28/82
0210E Novato Unified School District
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
District's claim of operational necessity must be based on facts which are concurrent or which antedate the decision to transfer employee; p. 21. more or view all topics or full text.
61311404/30/82
0065E Santa Clara County Superintendent of Schools
505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity
Transfer of bus driver not unlawful where managerial employee responsible for transfer had no knowledge of protected activity and where decision due to insurer's refusal to insure charging party; p. 22, proposed dec. Discharge of bus driver not unlawful where protected activity not clearly shown, apparently minor in scope and, in any event not shown, to employer, and where denial of permit justified by age and poor driving record; p. 23, proposed dec. more or view all topics or full text.
2217108/16/78