NLRB Decision Clarifies Wright Line Burden Applied In Mixed Motive Cases

On August 25, 2023, the National Labor Relations Board (NLRB) issued a decision in Intertape Polymer Corp. that clarified the Board's interpretation of the standard that it applies in so-called "mixed motive" cases. Although the Board framed its decision as merely clarifying the meaning of preceding cases, the practical impact will be to make it more difficult for employers to defend against charges that they were motivated by anti-union animus when disciplining or terminating employees for violating otherwise lawful policies.

Background

For decades, the Board has applied the standard from Wright Line, 251 NLRB 1083 (1980) to mixed motive cases. A mixed motive case is one in which there is evidence that an employer had both lawful and discriminatory reasons for taking an adverse action against an employee. For example, it might be lawful for an employer to discipline a worker who breaks a safety rule, but if there is evidence that anti-union animus motivated the