2020 Georgia Code
Title 45 - Public Officers and Employees
Chapter 19 - Labor Practices
Article 2 - Fair Employment Practices
§ 45-19-36. Filing Complaints of Unlawful Practice; Action by Administrator

1. As used in this Code section, the term "respondent" means an employer charged with an alleged unlawful practice.
2. An individual claiming to be aggrieved by an unlawful practice or another person on behalf of an individual claiming to be aggrieved by an unlawful practice may file with the administrator a written, sworn complaint stating that an unlawful practice has been committed setting forth the facts upon which the complaint is based and setting forth facts sufficient to enable the administrator to identify the employer charged. The administrator's staff shall promptly investigate the allegations of unlawful practice set forth in the complaint and, within 15 days of filing, shall serve the respondent with a copy of the complaint. The complaint shall be barred unless filed within 180 days after the alleged unlawful practice occurs.
3. Within 90 days after the complaint has been filed, the administrator shall determine whether there is reasonable cause to believe the respondent has engaged in an unlawful practice. If it is determined that there is no reasonable cause to believe that the respondent has engaged in an unlawful practice, the administrator shall issue an order dismissing the complaint.
4. Within ten days after receiving a copy of the order dismissing the complaint, the complainant may file with the administrator an application for reconsideration of the order. Upon such application, the administrator shall determine within 15 days whether there is reasonable cause to believe that the respondent has engaged in an unlawful practice. If it is again determined that there is no reasonable cause to believe that the respondent has engaged in an unlawful practice, the administrator shall issue an order dismissing the complaint and notifying the complainant that such complainant has the right to request a right to bring an action letter from the appropriate federal agency or petition for review in the appropriate superior court as provided for in Code Section 45-19-39.
5. After investigation or after the review provided for in subsection (d) of this Code section, if the administrator determines that there is reasonable cause to believe that the respondent has engaged in an unlawful practice, then the administrator's staff shall first endeavor to eliminate the alleged unlawful practice by conference, conciliation, and persuasion. The terms of a conciliation agreement reached with a respondent may require the respondent to refrain from the commission of unlawful discriminatory practices in the future and make such further provisions as may be agreed upon between the administrator and the respondent. If a conciliation agreement is entered into, the administrator shall issue and serve on the complainant a final order stating its terms. Except for the terms of the conciliation agreement, neither the administrator nor any agent thereof shall make public without the written consent of the complainant and the respondent information concerning efforts in the particular case to eliminate an unlawful practice by conference, conciliation, or persuasion, whether or not there is a determination of reasonable cause or a conciliation agreement.
6. In the event the administrator determines that there is reasonable cause to believe that an agency or authority has engaged in an unlawful practice as defined in this article and the administrator's staff is unable to eliminate the alleged unlawful practice by conference, conciliation, and persuasion, the administrator shall refer the complaint to a special master as provided for in Code Section 45-19-37.
7. At the expiration of one year from the date of a conciliation agreement and at other times in its reasonable discretion, the administrator's staff may investigate whether the terms of the agreement have been and are being complied with by the respondent. The administrator shall report the findings to the complainant and respondent. If the administrator finds reasonable cause to believe that the agreement has been breached, the complainant may seek enforcement of the agreement in the superior court of the county in which the alleged violation took place or in the county of the respondent's residence.
8. The administrator shall issue to the complainant and the respondent, 90 days from the date the complaint was filed and every 30 days thereafter, a status report summarizing any action taken with respect to the complaint. The status reports required by this subsection shall be issued until final resolution of the complaint.

(Ga. L. 1978, p. 859, §§ 12, 14; Ga. L. 1983, p. 1097, § 1; Ga. L. 1984, p. 22, § 45; Ga. L. 1985, p. 149, § 45; Ga. L. 1986, p. 10, § 45; Ga. L. 1989, p. 1210, § 1.)

- Pursuant to Code Section 28-9-5, in 1987, a comma between "employer" and "charged" was deleted in the first sentence in subsection (b).

JUDICIAL DECISIONS

Refusal to take polygraph examination.

- Dismissal of public employees from employment upon refusal to take a polygraph examination is permissible if the employee is informed: (1) that the questions will relate specifically and narrowly to the performance of official duties; (2) that the answer cannot be used against the employee in any subsequent criminal prosecution; and (3) that the penalty for refusal is dismissal. Moss v. Central State Hosp., 179 Ga. App. 359, 346 S.E.2d 580 (1986).

- O.C.G.A. § 45-19-36 with its 180 day statute of limitations applies to employment discrimination claims brought against state employees under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Champion v. Georgia Bureau of Investigation, 568 F. Supp. 712 (N.D. Ga. 1983).

The limitations period of O.C.G.A. § 45-19-36 is not applicable to 42 U.S.C. § 1983 public employment discrimination actions. Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ga. 1984).

Since the federal civil rights statute, 42 U.S.C. § 1983, does not contain its own statute of limitations, it is well settled that the period of limitations to be used is the most analogous one provided by state law. The applicable limitations period for First Amendment and due process claims is not the six-month period provided by O.C.G.A. § 45-19-36; the most analogous limitations period provided by Georgia law for these claims appears to be either the one provided by O.C.G.A. § 9-3-22 (enforcement of statutory rights) or the one provided by O.C.G.A. § 9-3-33 (injuries to person or reputation). Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ga. 1984).

The appropriate statute of limitations to be borrowed in a federal civil rights action under 42 U.S.C. § 1983 is O.C.G.A. § 9-3-22 (rights under statutes), not O.C.G.A. § 45-19-36. Solomon v. Hardison, 746 F.2d 699 (11th Cir. 1984); East Cent. Health Dist. v. Brown, 752 F.2d 615 (11th Cir. 1985).

Cited in Georgia Dep't of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981); Jordan v. Board of Regents, 583 F. Supp. 23 (S.D. Ga. 1983).

RESEARCH REFERENCES

Am. Jur. 2d.

- 15 Am. Jur. 2d, Civil Rights, § 15 et seq. 45C Am. Jur. 2d, Job Discrimination, § 2183 et seq.

- 14A C.J.S., Civil Rights, §§ 215, 216, 220, 221, 222, 612, 722, 723.

- Acquiescence or delay as affecting rights of public employee illegally discharged, suspended, or transferred, 145 A.L.R. 767.

Recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination, 40 A.L.R.3d 1290.

Requiring apology as "affirmative action" or other form of redress under State Civil Rights Act, 85 A.L.R.3d 402.

Construction and application of Employee Polygraph Protection Act of 1988 (29 USCA § 2001 et seq.), 154 A.L.R. Fed. 315.