2021 Georgia Code
Title 45 - Public Officers and Employees
Chapter 19 - Labor Practices
Article 2 - Fair Employment Practices
§ 45-19-29. Unlawful Practices Generally

It is an unlawful practice for an employer:

1. To fail or refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, national origin, sex, disability, or age;
2. To limit, segregate, or classify his employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect an individual's status as an employee because of such individual's race, color, religion, national origin, sex, disability, or age; or
3. To hire, promote, advance, segregate, or affirmatively hire an individual solely because of race, color, religion, national origin, sex, disability, or age, but this paragraph shall not prohibit an employer from voluntarily adopting and carrying out a plan to fill vacancies or hire new employees in a manner to eliminate or reduce imbalance in employment with respect to race, color, disability, religion, sex, national origin, or age if the plan has first been filed with the administrator for review and comment for a period of not less than 30 days.

(Ga. L. 1978, p. 859, § 3; Ga. L. 1983, p. 1097, § 1; Ga. L. 1984, p. 22, § 45; Ga. L. 1995, p. 1302, § 10.)

- Constitutional guarantee of freedom of religion, Ga. Const. 1983, Art. I, Sec. I, Para. III and Para. IV.

Discrimination in employment on basis of sex generally, Ch. 5, T. 34, C. 5.

Giving of preference to veterans, their widowed spouses, and dependents in the matter of employment in Department of Veterans Service, § 38-4-9.

JUDICIAL DECISIONS

Disparate impact treated differently from disparate treatment.

- Federal decisions interpreting Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) have consistently distinguished "disparate treatment" cases from cases involving facially neutral employment standards that have "disparate impact" on minority applicants. Georgia Bureau of Investigation v. Heard, 166 Ga. App. 895, 305 S.E.2d 670 (1983).

- In a "disparate impact" case, all that the aggrieved employee need prove to establish a prima-facie case of discrimination is that, regardless of intent to discriminate, the employer's otherwise facially neutral selection device screens out a disproportionate number of minorities. Once this is shown, the burden then shifts to the employer to demonstrate that, although it has discriminatory consequences, its facially neutral selection device is in fact job-related. Georgia Bureau of Investigation v. Heard, 166 Ga. App. 895, 305 S.E.2d 670 (1983).

- When dealing with subjective rather than facially-neutral and hence objective employment procedures, the case is to be treated as one involving "disparate treatment" wherein the employee's prima-facie case is shown by evidence that the subjective decision to deny the employee a promotion was racially motivated. The employer's rebuttal evidence must relate to defending the employee's subjective decision as having been based upon legitimate, nondiscriminatory reasons. Georgia Bureau of Investigation v. Heard, 166 Ga. App. 895, 305 S.E.2d 670 (1983).

Three-part allocation of burden of proving discrimination in "disparate treatment" case. See Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985).

- To establish a prima facie case of "disparate treatment" when discrimination on the basis of sex is alleged the plaintiff must prove by a preponderance of the evidence that the plaintiff applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985).

- When an employer treats some employees less favorably than others due to race, the focus is on "disparate treatment." Georgia Dep't of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981).

- Plaintiff can make out a prima-facie claim of "disparate treatment" by showing: (i) that the plaintiff belongs to a racial minority; (ii) that the plaintiff applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite the plaintiff's qualifications, the plaintiff was rejected; and (iv) that, after the plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons with the complainant's qualifications. Georgia Dep't of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981).

Once plaintiff establishes a prima-facie case, discriminatory intent may be inferred absent articulation of a legitimate, nondiscriminatory reason for plaintiff's rejection. Georgia Dep't of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981).

- When the employer's relevant promotion device consisted of a panel of supervisors who subjectively evaluated and rated each applicant's qualifications against a number of objective standards, such subjective decision-making promotional system was not such a "facially-neutral" employment practice that the proof thereof - standing alone and without further evidence authorizing a finding of discriminatory intent - will establish a prima-facie case of employment discrimination under the "discriminatory impact" theory and thereby shift the burden of proof to the employer. Georgia Bureau of Investigation v. Heard, 166 Ga. App. 895, 305 S.E.2d 670 (1983).

Subjective promotion procedures are to be closely scrutinized because of their susceptibility to discriminatory abuse and the more subjective the qualification sought and the more subjective the manner in which it is measured, the more difficult will be the defendant's task in meeting defendant's burden. Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985).

- See Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985).

OPINIONS OF THE ATTORNEY GENERAL

General Assembly not "public employer."

- Ga. L. 1978, p. 859 (see now O.C.G.A. Art. 2, Ch. 19, T. 45) prohibits discriminatory employment practices by "public employers" as defined in Ga. L. 1978, p. 859, § 1 (see now O.C.G.A. § 45-19-22), and therefore would not include the General Assembly nor any of its components. 1978 Op. Att'y Gen. No. 78-62.

- Under the two respective statutes, Ga. L. 1978, p. 859 (see now O.C.G.A. §§ 45-19-29 and45-20-4), the State Personnel Board and the Office of Fair Employment Practices (OFEP) have overlapping jurisdiction over charges of unlawful employment discrimination in the classified service; however, under O.C.G.A. § 45-19-41, if an individual processes a claim of discrimination with either the State Personnel Board or with the OFEP and receives a final determination from either the State Personnel Board or a special master, that person cannot then attempt to process a charge with the other agency where the second charge involves any issues that were determined by the first administrative agency or that could have been included under the rules of law in the original administrative action. Where there is concurrent jurisdiction, the charging party has a choice concerning the agency to which that party will apply for relief. 1978 Op. Att'y Gen. No. 78-59.

RESEARCH REFERENCES

Am. Jur. 2d.

- 45A Am. Jur. 2d, Job Discrimination, § 114 et seq.

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

- Discrimination because of race, color, or creed in respect of appointment, duties, compensation, etc., of schoolteachers or other public officers or employees, 130 A.L.R. 1512.

Marriage as ground for discharge of one employed in public service other than as teacher, 135 A.L.R. 1346.

Exclusion of or discrimination against a physician or surgeon by hospital, 37 A.L.R.3d 645, 28 A.L.R.5th 107.

Constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Mandatory retirement of public officer or employee based on age, 81 A.L.R.3d 811.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Damages and other relief under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 435.

Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 A.L.R.4th 26.

Judicial construction and application of state legislation prohibiting religious discrimination in employment, 37 A.L.R.5th 349.

Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

What constitutes substantial limitation on major life activity of working for purposes of state civil rights acts, 102 A.L.R.5th 1.

Necessity of, and what constitutes, employer's reasonable accommodation of employee's religious preference under state law, 107 A.L.R.5th 623.

What constitutes racial harassment in employment violative of state civil rights acts, 17 A.L.R.6th 563.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress - ethnic, racial, or religious harassment or discrimination, 19 A.L.R.6th 1.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress - sexual harassment, sexual discrimination, or accusations concerning sexual conduct or orientation, 20 A.L.R.6th 1.

What constitutes employer's reasonable accommodation of employee's religious preferences under Title VII of Civil Rights Act of 1964, 134 A.L.R. Fed 1.

What constitutes religious harassment in employment in violation of Title VII of Civil Rights Act of 1964 (42 USCA § 2000e et seq.), 149 A.L.R. Fed. 405.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - private employment cases, 150 A.L.R. Fed. 1

What constitutes racial harassment in employment violative of Title VII of Civil Rights Act of 1964 (42 USCA § 2000e et seq.), 156 A.L.R. Fed. 1

Liability of employer, under Title VII of Civil Rights Act of 1964 (42 USCA §§ 2000e et seq.) for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed. 445.

"Bona fide employee benefit plan" exception to general prohibition of Age Discrimination in Employment Act (29 U.S.C.A. § 623(f)(2)(B)) as applied to plans other than early retirement incentive plans, 184 A.L.R. Fed. 1

Discrimination on basis of person's transsexual status as violation of state or local law, 96 A.L.R.6th 189.

Discrimination on basis of person's transgender or transsexual status as violation of federal law, 84 A.L.R. Fed. 2d 1.

Who is "supervisor" for purposes of racial harassment claim under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) imputing liability to employer, 92 A.L.R. Fed. 2d 91.

What is reasonable accommodation of deaf or hearing-impaired employee for purposes of Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 et seq., 2 A.L.R. Fed. 3d 1.

Identity of commenter and relationship of remark to employment decision as determinants of relevance of stray remark or comment in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 7.

Stray remark or comment involving male plaintiffs in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 8.

Employment discrimination against obese persons as violation of Americans with Disabilities Act of 1990 or Rehabilitation Act of 1973, 4 A.L.R. Fed. 3d 10.

Stray remark or comment toward female plaintiffs regarding pregnancy, child-rearing, and related references in Title VII action for sex discrimination, 6 A.L.R. Fed. 3d 3.

Validity, construction, and application of Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e-1(a), 2000e-2(e)(2)) exempting activities of religious organizations from operation of Title VII equal employment opportunity provisions, 6 A.L.R. Fed. 3d 6.

Construction and application of four-fifths rule for finding evidence of adverse impact in federal employment discrimination cases, 7 A.L.R. Fed. 3d 1.

Stray remark or comment involving general references toward female plaintiffs in Title VII action for sex discrimination, 7 A.L.R. Fed. 3d 2.

Rights of workers with disabilities at sheltered workshops or work activity centers under federal civil rights provisions, 8 A.L.R. Fed. 3d 1.

Employee's unpaid leave as reasonable accommodation under Americans With Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq., 8 A.L.R. Fed. 3d 2.

Stray remark or comment involving overt sexual references toward female plaintiffs in Title VII action for sex discrimination, 9 A.L.R. Fed. 3d 5.

Failure to hire deaf or hearing-impaired job applicant as violation of Americans With Disabilities Act, 42 U.S.C.A. § 12101 et seq., 9 A.L.R. Fed. 3d 7.

Employer's dress policy as religious discrimination under federal law, 12 A.L.R. Fed. 3d 5.

National security exception to employment discrimination provisions of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-2(g)), 12 A.L.R. Fed. 3d 9.

Employer's grooming policy as religious discrimination under federal law, 13 A.L.R. Fed. 3d 1.

Rights of employees with bipolar disorder under Americans with Disabilities Act, Rehabilitation Act, and Family and Medical Leave Act, 17 A.L.R. Fed. 3d 5.