NLRB Clarifies Burden Shifting Framework In Mixed-Motive Cases

On August 28, 2023, the National Labor Relations Board ("NLRB" or the "Board") issued its decision in Intertape Polymer Corp., 372 NLRB No. 133 (2023) clarifying the standard by which the General Counsel satisfies her initial burden of persuasion in cases involving mixed motives for adverse employment actions. Specifically, the Board revisited and clarified Tschiggfrie Properties, 368 NLRB No. 120 (2019), expressly stating that Tschiggfrie correctly articulated the proper standard.

Background

For over 40 years, the Board has applied the burden-shifting framework articulated in Wright Line, 251 NLRB 1083 (1980) to allegations of discrimination. Wright Line established a two-part causation test to determine whether an employer was discriminatorily motivated by union animus when it took adverse employment action against an employee.