What is the employer's burden of proving a protected characteristic was a motivating factor in terminating an employee?

However, the plaintiff's burden at this step is somewhat different in a "mixed motive" case. In a case involving not one, but mixed motives, meaning that "there is no one 'true' motive behind the decision" and "[i]nstead, the decision is a result of multiple factors, at least one of which is legitimate," Costa, 299 F.3d at 856, "it does not make sense to ask if the employer's stated reason for terminating an employee is a pretext for retaliation, when the employer has offered more than one reason for the action that it took." Stegall, 350 F.3d at 1067. Therefore, in mixed motive cases, plaintiff must show, by a preponderance of the evidence (either direct or circumstantial), that the discriminatory reason or protected characteristic was "a motivating factor" in the employment decision. Id.; Costa, 299 F.3d at 857 ("The employee's ultimate burden of proof in all cases remains the same: to show by a preponderance of the evidence that the challenged employment decision was 'because of' discrimination [or, in this case, retaliation]."). "Once that is done, the employer may escape liability only by proving by way of an affirmative defense that the employment decision would have been the same even if the characteristic had played no role." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1110 (9th Cir. 1991).

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1. Protected Activity