EMPLOYER DISCRIMINATION; DEFENSES – In General
Single Topic for Decision 2221E
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505.01000 – In General
Once the prima facie case is established, the burden shifts to the employer to prove it would have taken the same action even in the absence of the protected activity; the question becomes whether the adverse action would not have occurred “but for” the protected activity; the “but for” test is an affirmative defense which the employer must establish by a preponderance of the evidence; when conducting the “but for” analysis, PERB weighs the employer’s justifications for the adverse action against evidence of the employer’s retaliatory motive to determine whether the employer’s justification was honestly invoked; where justification given by the employer for the adverse action was that charging party’s interpersonal skills were deficient, but there was no history of deficiencies, every performance evaluation reflected superior interpersonal skills and colleagues who interacted with charging party all testified that charging party’s interpersonal skills were beyond reproach, the employer failed to establish its affirmative defense.