| HB 1727 - Persons and their rights; unlawful discrimination; liability |
First Reader Summary
A BILL to amend Chapter 2 of Title 1 of the Official Code of
Georgia Annotated, relating to persons and their rights, so as to
provide that every person who subjects, or causes to be
subjected, any person to the deprivation of any rights,
privileges, or immunities secured by the Constitution or laws of
the State of Georgia, based upon a person's race, color, national
origin, gender, marital status, sexual orientation, age,
religion, or disability status, or perception thereof, shall have
committed unlawful discrimination and shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress; and for other purposes.
HB 1727 LC 19 4711ER
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Chapter 2 of Title 1 of the Official Code of
1- 2 Georgia Annotated, relating to persons and their rights, so
1- 3 as to provide that every person who subjects, or causes to
1- 4 be subjected, any person to the deprivation of any rights,
1- 5 privileges, or immunities secured by the Constitution or
1- 6 laws of the State of Georgia, based upon a person's race,
1- 7 color, national origin, gender, marital status, sexual
1- 8 orientation, age, religion, or disability status, or
1- 9 perception thereof, shall have committed unlawful
1-10 discrimination and shall be liable to the party injured in
1-11 an action at law, suit in equity, or other proper proceeding
1-12 for redress; to provide for legislative purpose and intent;
1-13 to define certain terms; to prohibit discrimination by
1-14 conspiracy; to prohibit unlawful discrimination in
1-15 employment practices; to provide exceptions with respect to
1-16 unlawful discrimination in employment practices; to prohibit
1-17 unlawful discrimination in public accommodations; to
1-18 prohibit unlawful discrimination in credit and banking
1-19 practices; to prohibit unlawful discrimination in insurance
1-20 practices; to prohibit unlawful discrimination in
1-21 educational practices; to provide exceptions with respect to
1-22 unlawful discrimination in educational practices; to
1-23 prohibit unlawful discrimination through harassment; to
1-24 provide an exception to unlawful discrimination practices
1-25 based on a person's age; to provide an exception to unlawful
1-26 discrimination practices based on a person's gender; to
1-27 provide that nothing in this Act shall affect court ordered
1-28 remedies, affirmative action, or conciliation agreements; to
1-29 create a Civil Rights Division within the Commission on
1-30 Equal Opportunity and to provide for its powers and duties;
1-31 to provide for enforcement of this Act; to provide
1-32 procedures with respect to the filing of complaints; to
1-33 provide for limitation of actions; to provide for records,
1-34 confidentiality, and reporting requirements; to provide for
1-35 judicial review of decisions of the Commission on Equal
1-36 Opportunity; to provide for private causes of action; to
1-37 provide for civil actions by the Attorney General; to
-1-
2- 1 provide remedies; to provide for attorneys' fees; to provide
2- 2 that any person who intentionally commits an unlawful
2- 3 discriminatory act as set forth in this Act or aids, abets,
2- 4 incites, compels, or coerces another to do so commits an
2- 5 unlawful act; to provide a penalty; to amend Article 2 of
2- 6 Chapter 19 of Title 45 of the Official Code of Georgia
2- 7 Annotated, known as the "Fair Employment Practices Act of
2- 8 1978," so as to change the definition of a certain term; to
2- 9 change the composition of the Board of Commissioners of the
2-10 Commission on Equal Opportunity; to provide for the
2-11 appointment of additional members; to provide for related
2-12 matters; to repeal conflicting laws; and for other purposes.
2-13 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
2-14 SECTION 1.
2-15 Chapter 2 of Title 1 of the Official Code of Georgia
2-16 Annotated, relating to persons and their rights, is amended
2-17 by designating Code Sections 1-2-1 through 1-2-11 of said
2-18 chapter as Article 1 of said chapter and adding at the end
2-19 of said chapter a new Article 2 to read as follows:
2-20 1-2-20.
2-21 (a) The General Assembly finds and declares that the
2-22 practice of discrimination based upon race, color,
2-23 national origin, gender, marital status, sexual
2-24 orientation, age, religion, or disability status, or the
2-25 perception thereof, in employment, credit, banking,
2-26 education, insurance, public accommodations, and access to
2-27 services is against public policy.
2-28 (b) The general purposes of this article are:
2-29 (1) To safeguard all individuals from, and promote the
2-30 elimination of, discrimination on the grounds and in the
2-31 areas set forth above;
2-32 (2) To establish a mechanism and a uniform procedure for
2-33 the enforcement of the state's antidiscrimination laws;
2-34 and
2-35 (3) To expand the jurisdiction and authority of the
2-36 Georgia Commission on Equal Opportunity, as set forth in
2-37 Code Section 45-19-24.
2-38 (c) This article shall be broadly construed to further the
2-39 purposes stated herein.
-2-
3- 1 (d) Nothing in this article shall be construed as
3- 2 indicating an intent to repeal, exclude, or limit local or
3- 3 federal laws on the same subject matter that are not
3- 4 inconsistent with this article, it being the intent of the
3- 5 General Assembly to preserve all existing rights and
3- 6 remedies under such laws.
3- 7 (e) The provisions of the article are severable, and if
3- 8 any of its provisions shall be held unconstitutional, or
3- 9 invalidated for any reason, by any court of competent
3-10 jurisdiction, the decision of such court shall not affect
3-11 or impair any of the remaining provisions.
3-12 1-2-21.
3-13 As used in this article, the term:
3-14 (1) 'Administrator' means the administrator as defined
3-15 in Code Section 45-19-22.
3-16 (2) 'Commission' means the Commission on Equal
3-17 Opportunity created in Code Section 45-19-24.
3-18 (3) 'Disability' means, with respect to an individual, a
3-19 physical or mental impairment which substantially limits
3-20 one or more major life activities, having a record of
3-21 such an impairment, or being regarded as having such an
3-22 impairment.
3-23 (4) 'Discrimination' means any direct or indirect act or
3-24 practice of exclusion, distinction, restriction,
3-25 segregation, limitation, refusal, or denial based upon
3-26 race, color, national origin, gender, marital status,
3-27 sexual orientation, age, religion, or disability status,
3-28 or the perception thereof, or the aiding, abetting,
3-29 inciting, coercing, or compelling of such an act or
3-30 practice.
3-31 (5) 'Division' means the Civil Rights Division created
3-32 within the Commission on Equal Opportunity pursuant to
3-33 Code Section 1-2-34.
3-34 (6) 'Educational institution' means any public or
3-35 private entity providing educational services including,
3-36 but not limited to, a university, college, community or
3-37 junior college, extension course, elementary or
3-38 secondary school, school system or academy,
3-39 kindergarten, pre-kindergarten, Head Start, day-care, or
3-40 nursery; a business, nursing, professional,
3-41 secretarial, technical, or vocational school; any other
-3-
4- 1 private or public school or program providing
4- 2 instructional services to persons within the State of
4- 3 Georgia; or an agent of an educational institution.
4- 4 (7) 'Employee' means an individual who is employed by an
4- 5 employer and who resides or works within the State of
4- 6 Georgia.
4- 7 (8) 'Employer' means any person who hires for
4- 8 compensation individuals directly or indirectly.
4- 9 (9) 'Employment agency' means a person or an agency that
4-10 regularly undertakes, with or without compensation, to
4-11 procure employees for an employer or to procure for
4-12 employees opportunities to work for an employer and
4-13 includes an agent of such a person.
4-14 (10) 'Harassment' means:
4-15 (A) Conduct based upon the race, color, national
4-16 origin, gender, marital status, sexual orientation,
4-17 age, religion, or disability status, or the perception
4-18 thereof, that has the purpose or effect of
4-19 unreasonably interfering with an individual's:
4-20 (i) Access to credit, banking services, employment,
4-21 education, insurance, public accommodations, or
4-22 services;
4-23 (ii) Work performance or creating an intimidating,
4-24 hostile, or offensive work environment; or
4-25 (iii) Performance as a student or creating an
4-26 intimidating, hostile, or offensive educational
4-27 environment; or
4-28 (B) Unwelcome sexual advances, requests for sexual
4-29 favors, and other verbal or physical conduct of a
4-30 sexual nature when:
4-31 (i) Submission to such conduct is made either
4-32 explicitly or implicitly a term or condition of an
4-33 individual's employment or education;
4-34 (ii) Submission to or rejection of such conduct by
4-35 an individual is used as the basis for employment or
4-36 educational decisions affecting such individual; or
4-37 (iii) Such conduct has the purpose or effect of
4-38 unreasonably interfering with an individual's
4-39 performance at work or in school or creating an
-4-
5- 1 intimidating, hostile, or offensive working or
5- 2 educational environment.
5- 3 (11) 'Labor organization' means any organization that
5- 4 exists wholly or partly for the purpose of collective
5- 5 bargaining or dealing with employers concerning
5- 6 grievances, terms, or conditions of employment or mutual
5- 7 aid or protection of employees.
5- 8 (12) 'Marital status' means the status of being married,
5- 9 unmarried, engaged, single, divorced, separated, or
5-10 widowed and any of the conditions associated therewith,
5-11 including pregnancy or parenthood.
5-12 (13) 'Person' means one or more individuals and
5-13 includes, but is not limited to, partnerships,
5-14 associations, corporations, legal representatives,
5-15 governments, or any political subdivisions.
5-16 (14) 'Public accommodations' means any person or entity
5-17 that provides food, beverages, lodging, entertainment,
5-18 facilities, accommodations, goods, or services to the
5-19 public.
5-20 (15) 'Sexual orientation' means being, or perceived as
5-21 being, heterosexual, homosexual, or bisexual, or having,
5-22 or being perceived as having, a self-image or identity
5-23 not traditionally associated with one's biological
5-24 maleness or femaleness.
5-25 1-2-22.
5-26 (a) Every person who subjects, or causes to be subjected,
5-27 any person to the deprivation of any rights, privileges,
5-28 or immunities secured by the Constitution or laws of the
5-29 State of Georgia, based upon a person's race, color,
5-30 national origin, gender, marital status, sexual
5-31 orientation, age, religion, or disability status, or
5-32 perception thereof, shall have committed unlawful
5-33 discrimination and shall be liable to the party injured in
5-34 an action at law, suit in equity, or other proper
5-35 proceeding for redress.
5-36 (b) If two or more persons conspire for the purposes of:
5-37 (1) Depriving, either directly or indirectly, any person
5-38 or class of persons of the equal protection of the laws
5-39 or of equal privileges and immunities under the laws; or
5-40 (2) Preventing or hindering the constituted authorities
-5-
6- 1 of the state from giving to or securing for all persons
6- 2 within the state equal protection of the laws,
6- 3 and if one or more persons engaged therein do, or cause to
6- 4 be done, any act in furtherance of the object of such
6- 5 conspiracy whereby another is injured in his or her person
6- 6 or property or deprived of having or exercising any right
6- 7 or privilege of a citizen of this state, then the party so
6- 8 injured or deprived shall have an action for the recovery
6- 9 of damages against any one or more of the conspirators.
6-10 1-2-23.
6-11 (a) It is an unlawful employment practice for an employer
6-12 to:
6-13 (1) Limit, segregate, classify, discharge, or fail or
6-14 refuse to hire or otherwise discriminate against any
6-15 individual with respect to the individual's
6-16 compensation, terms, tenure, conditions, upgrading,
6-17 facilities, or privileges of employment or take any
6-18 action which would deprive or tend to deprive an
6-19 individual of employment opportunities or otherwise
6-20 adversely affect an individual's status as an employee
6-21 based upon such individual's race, color, national
6-22 origin, gender, marital status, sexual orientation, age,
6-23 religion, or disability status, or perception thereof;
6-24 (2) Take reprisals against any person because he or she
6-25 has opposed any practices or acts forbidden under this
6-26 article or because he or she has filed a complaint,
6-27 testified, or assisted in proceeding under this article;
6-28 or
6-29 (3) Aid, abet, incite, compel, or coerce the doing of
6-30 any of the acts forbidden under this article or to
6-31 attempt to do so.
6-32 (b) It is an unlawful practice for a labor organization,
6-33 or its employee or agent, based upon a person's race,
6-34 color, national origin, gender, marital status, sexual
6-35 orientation, age, religion, or disability status, or
6-36 perception thereof, to discriminate against a person
6-37 seeking membership or against a member with respect to
6-38 membership rights, hiring, apprenticeship, tenure,
6-39 compensation, terms, upgrading, conditions, facilities, or
6-40 privileges of employment or to fail to classify properly,
6-41 refer for employment, or otherwise discriminate against a
6-42 person or member.
-6-
7- 1 (c) It is an unlawful practice for an employment agency,
7- 2 or its employee or agent, based upon a person's race,
7- 3 color, national origin, gender, marital status, sexual
7- 4 orientation, age, religion, or disability status, or
7- 5 perception thereof, to:
7- 6 (1) Refuse to accept, register, classify properly, refer
7- 7 for employment, or otherwise discriminate against a
7- 8 person; or
7- 9 (2) Comply with a request from an employer for referral
7-10 of applicants for employment if the request, whether
7-11 direct or indirect, indicates that the employer fails to
7-12 comply with the provisions of this article.
7-13 (d) It is an unlawful practice for any person carrying on
7-14 or conducting any business within this state requiring the
7-15 employment of labor to bar or discharge from employment or
7-16 to refuse to hire, employ, or license any individual
7-17 solely upon the ground of age, when the reasonable demands
7-18 of the position do not require such an age distinction,
7-19 provided that such individual is qualified physically,
7-20 mentally, and by training and experience able to perform
7-21 satisfactorily the labor assigned to him or her or for
7-22 which he or she applies. Nothing in this subsection shall
7-23 affect the retirement policy or system of any employer
7-24 where such policy or system is not merely a subterfuge to
7-25 evade the purposes of this article.
7-26 (e) Any rights granted under this article cannot be waived
7-27 or forfeited in an employment contract and any such
7-28 provision will be void ab initio.
7-29 1-2-24.
7-30 (a) The provisions of this article shall not apply to:
7-31 (1) The employment of any individual:
7-32 (A) By the individual's parent, grandparent, spouse,
7-33 child, or grandchild; or
7-34 (B) In the domestic service of any person, except that
7-35 the provisions of this article prohibiting harassment
7-36 shall apply to such employment;
7-37 (2) A religious corporation, association, society, or
7-38 educational institution with respect to qualifications
7-39 based upon religion, when religion is a bona fide
7-40 occupational qualification for employment;
-7-
8- 1 (3) The operation of a bona fide seniority system which
8- 2 mandates differences in such things as wages, hiring
8- 3 priorities, layoff priorities, vacation credit, and job
8- 4 assignments based upon seniority; or
8- 5 (4) A restriction imposed by state statute, home rule,
8- 6 charter, ordinance, or civil service rule and applied
8- 7 uniformly and without exception to all individuals,
8- 8 which establishes a maximum age for entry into
8- 9 employment.
8-10 (b) The provisions of this article shall not mandate or
8-11 require an employer to execute unreasonable structural
8-12 changes or purchase expensive equipment to accommodate the
8-13 employment of a person with a disability.
8-14 (c) It shall not be an unlawful employment practice for an
8-15 employer to hire and employ employees based upon gender in
8-16 those certain instances where gender is a bona fide
8-17 occupational qualification reasonably necessary to the
8-18 normal operation of that particular business or
8-19 enterprise. In such instances, the employer must prove
8-20 that the practice is justified because all of the excluded
8-21 individuals are unable to perform the job in question and
8-22 because the essence of the business operation would
8-23 otherwise be undermined.
8-24 1-2-25.
8-25 It is an unlawful practice for any person being the owner,
8-26 lessee, proprietor, manager, superintendent, agent, or
8-27 employee of any place of public accommodation, directly or
8-28 indirectly, to:
8-29 (1) Discriminate against any person based upon that
8-30 person's race, color, national origin, gender, marital
8-31 status, sexual orientation, age, religion, or disability
8-32 status, or perception thereof, in the provision of any
8-33 of the accommodations, advantages, facilities, services,
8-34 or privileges thereof; or
8-35 (2) Publish, circulate, issue, display, post, or mail
8-36 any written or printed communication, notice, or
8-37 advertisement to the effect that any of the
8-38 accommodations, advantages, facilities, services, or
8-39 privileges of any such place shall be refused, withheld
8-40 from, or denied to any person or that the patronage of
8-41 any person is unwelcome or objectionable based upon
8-42 race, color, national origin, gender, marital status,
-8-
9- 1 sexual orientation, age, religion, or disability
9- 2 status, or perception thereof.
9- 3 1-2-26.
9- 4 The provisions of this article relating to gender shall
9- 5 not apply to:
9- 6 (1) Restrooms, locker rooms, and similar facilities; or
9- 7 (2) Restricting membership on an athletic team or in a
9- 8 program or event to participants of one sex if the
9- 9 restriction is necessary to preserve the unique
9-10 character of the team, program, or event and it would
9-11 not sustantially reduce comparable athletic
9-12 opportunities for the other sex.
9-13 1-2-27.
9-14 It is an unlawful credit or banking practice for any
9-15 creditor, bank, or financial institution, or its employee
9-16 or agent, to discriminate in the extension of personal or
9-17 commercial credit, or in the requirements for obtaining
9-18 credit, or in the provision of, or access to, financial,
9-19 banking, or credit services based upon race, color,
9-20 national origin, gender, marital status, sexual
9-21 orientation, age, religion, or disability status, or
9-22 perception thereof.
9-23 1-2-28.
9-24 It is an unlawful insurance practice for any insurance
9-25 provider, its employee or agent, whether or not an
9-26 independent agent, to discriminate in the extension of
9-27 personal, automobile, residential, or commercial
9-28 insurance, or in the requirements for obtaining personal,
9-29 automobile, residential, or commercial insurance based
9-30 upon race, color, national origin, gender, marital status,
9-31 sexual orientation, age, religion, or disability status,
9-32 or perception thereof.
9-33 1-2-29.
9-34 It is an unlawful education practice for any educational
9-35 institution, its employee or agent, based upon the race,
9-36 color, national origin, gender, marital status, sexual
9-37 orientation, age, religion, or disability status, or
9-38 perception thereof, to:
9-39 (1) Deny a person admission to, or exclude, expel,
9-40 suspend, or transfer a person from, or deny a person
-9-
10- 1 access to the activities, benefits, facilities,
10- 2 programs, or services of the educational institution;
10- 3 (2) Separate a person or persons into different classes,
10- 4 academic tracks, or courses of study; or
10- 5 (3) Provide a person with an inadequate public education
10- 6 which does not support, through curriculum, finances,
10- 7 standards, instructional staff, technology, or other
10- 8 means, the person's development of essential
10- 9 competencies in order that such person may realize his
10-10 or her potential.
10-11 1-2-30.
10-12 (a) It is not an unlawful practice for a religious or
10-13 denominational educational institution to limit admissions
10-14 or give preference to applicants of the same religion.
10-15 (b) It is not an unlawful practice for pre-kindergarten,
10-16 Head Start, primary, elementary, or secondary educational
10-17 schools or institutions to consider an individual's age
10-18 when placing the individual in an appropriate class or
10-19 grade.
10-20 (c) The provisions of this Code section relating to
10-21 education shall not restrict or limit the rights,
10-22 procedures, and remedies available under:
10-23 (1) Section 504 of the Rehabilitation Act of 1973, 29
10-24 U.S.C. Section 794;
10-25 (2) The Americans with Disabilities Act, 42 U.S.C.
10-26 Section 12101, et seq.;
10-27 (3) The Individuals with Disabilities Education Act, 20
10-28 U.S.C., Section 1401, et seq.; and
10-29 (4) Georgia laws and regulations implementing these
10-30 federal statutes.
10-31 (d) With respect to educational institutions of
10-32 undergraduate higher education, it is not an unlawful
10-33 practice to limit admissions or give preferences to
10-34 applicants based upon gender where an institution
10-35 traditionally and continually from its establishment has
10-36 had a policy of admitting only students of one gender.
10-37 (e) It is not an unlawful practice for an educational
10-38 institution to provide programs or services designed to
10-39 meet the needs of individuals with disabilities or with
10-40 limited proficiency in English.
-10-
11- 1 (f) It is not an unlawful practice for an educational
11- 2 institution to develop and implement methods and
11- 3 strategies to increase the participation of individuals of
11- 4 a particular race, color, national origin, gender, marital
11- 5 status, sexual orientation, age, religion, or disability
11- 6 status in programs or services in which individuals of
11- 7 that particular race, color, national origin, gender,
11- 8 marital status, sexual orientation, age, religion, or
11- 9 disability status have been traditionally
11-10 underrepresented.
11-11 1-2-31.
11-12 (a) It is an unlawful practice for any person to harass
11-13 another person based upon the person's race, color,
11-14 national origin, gender, marital status, sexual
11-15 orientation, age, religion, or disability status, or
11-16 perception thereof, in the areas of employment, credit,
11-17 banking, education, insurance, and public accommodations
11-18 or access to services.
11-19 (b) An employer, employment agency, labor organization, or
11-20 educational institution is subject to vicarious liability
11-21 to a victimized employee or student for an actionable
11-22 hostile environment created by a supervisor with immediate
11-23 or successively higher authority over the employee or by a
11-24 teacher or agent with authority over the student. When no
11-25 tangible action is taken, the employer, employment agency,
11-26 labor organization, or educational institution may raise
11-27 an affirmative defense to liability or damages, subject to
11-28 proof by a preponderance of the evidence, by showing:
11-29 (1) It exercised reasonable care to prevent and correct
11-30 promptly any harassing behavior; or
11-31 (2) The plaintiff unreasonably failed to take advantage
11-32 of any accessible preventive or corrective opportunities
11-33 provided by the employer or educational institution or
11-34 to avoid harm otherwise.
11-35 No affirmative defense is available when the harassment
11-36 culminates in a tangible employment or educational action.
11-37 (c) With respect to peer harassment among fellow employees
11-38 or students, an employer, employment agency, labor
11-39 organization, or educational institution is responsible
11-40 for any acts of peer harassment in the workplace or
11-41 educational institution where the employer, employment
11-42 agency, labor organization, or educational institution,
-11-
12- 1 its agents, supervisory employees, or teachers knew or
12- 2 should have known of the conduct, unless it can show that
12- 3 it took immediate and appropriate corrective action.
12- 4 (d) Each educational institution must adopt and make
12- 5 available a policy that prohibits harassment of students,
12- 6 provides procedures for reporting harassment of students,
12- 7 provides appropriate remedies and protections for harassed
12- 8 students, and provides appropriate sanctions against those
12- 9 who commit harassment. The lack of such a policy creates a
12-10 rebuttable presumption of liability.
12-11 (e) Every employer should adopt and make available a
12-12 policy that prohibits harassment of employees, provides
12-13 procedures for reporting harassment, provides appropriate
12-14 remedies for harassed employes, and provides appropriate
12-15 sanctions against those who commit harassment. The lack
12-16 of such policy will be evidence of liability and may be
12-17 admitted at trial to prove negligence, intent to
12-18 discriminate, or failure to use reasonable care to prevent
12-19 or correct harassment.
12-20 1-2-32.
12-21 The provisions of this article relating to age shall not
12-22 apply to persons who have not attained the age of
12-23 majority.
12-24 1-2-33.
12-25 Nothing in this article shall be construed to:
12-26 (1) Affect or prohibit court ordered remedies,
12-27 affirmative action, or conciliation agreements that are
12-28 in accordance with the law; or
12-29 (2) Prohibit the state or any state agency, political
12-30 subdivision, or public authority from complying with
12-31 federal regulations, taking action to prevent the
12-32 forfeiture or permit the receipt of federal funds, or
12-33 secure information.
12-34 1-2-34.
12-35 (a) There is created a Civil Rights Division of the
12-36 Commission on Equal Opportunity to assist the
12-37 administrator in carrying out the provisions of this
12-38 article and in developing and implementing policies and
12-39 programs to combat unlawful discrimination.
-12-
13- 1 (b) The administrator shall establish and publish such
13- 2 rules as are necessary to the orderly administration of
13- 3 this article. Said rule making is to be governed by
13- 4 Chapter 13 of Title 50, the 'Georgia Administrative
13- 5 Procedure Act.'
13- 6 1-2-35.
13- 7 It is an unlawful practice for a party to a conciliation
13- 8 agreement made pursuant to subsection (e) of Code Section
13- 9 1-2-36 to violate the terms of the agreement.
13-10 1-2-36.
13-11 (a) As used in this Code section, the term 'respondent'
13-12 means a person charged with an act or practice unlawful
13-13 under this article.
13-14 (b) An individual claiming to be aggrieved by an unlawful
13-15 practice, such an individuals' representative, or the
13-16 Attorney General may file with the administrator a
13-17 written, sworn complaint stating that an unlawful practice
13-18 has been committed setting forth the facts upon which the
13-19 complaint is based and setting forth facts sufficient to
13-20 enable the administrator to identify the respondent so
13-21 charged. The form of the complaint will be as determined
13-22 by the administrator. The administrator shall have an
13-23 absolute right to join the commission as a plaintiff in
13-24 any action filed with the administrator. Such joinder may
13-25 occur at any time, without limitation, with only written
13-26 notice to the other parties and, if such joinder is
13-27 postdetermination or after the withdrawal of the claim
13-28 before the commission under subsection (a) of Code Section
13-29 1-2-41, to any court at which the matter has been filed.
13-30 The administrator's staff shall promptly investigate the
13-31 allegations of unlawful practice set forth in the
13-32 complaint and, within a reasonable period of time, shall
13-33 serve the respondent with a copy of the complaint. The
13-34 complaint shall be barred unless filed within two years
13-35 after the alleged unlawful practice occurs.
13-36 (c) The administrator shall determine within a reasonable
13-37 period of time whether there is reasonable cause to
13-38 believe the respondent has engaged in an unlawful
13-39 practice. If it is determined that there is no reasonable
13-40 cause to believe that the respondent has engaged in an
13-41 unlawful practice, the administrator shall issue an order
13-42 dismissing the complaint.
-13-
14- 1 (d) Within ten days after receiving a copy of the order
14- 2 dismissing the complaint, the complainant may file with
14- 3 the administrator an application for reconsideration of
14- 4 the order. Upon such application, the administrator shall
14- 5 determine within 15 days whether there is reasonable cause
14- 6 to believe that the respondent has engaged in an unlawful
14- 7 practice. If it is again determined that there is no
14- 8 reasonable cause to believe that the respondent has
14- 9 engaged in an unlawful practice, the administrator shall
14-10 issue an order dismissing the complaint. Such dismissal
14-11 shall not prejudice the complainant's right to file an
14-12 action under this article with any court of competent
14-13 jurisdiction.
14-14 (e) After investigation or after the review provided for
14-15 in subsection (d) of this Code section, if the
14-16 administrator determines that there is reasonable cause to
14-17 believe that the respondent has engaged in an unlawful
14-18 practice, then the administrator's staff shall first
14-19 endeavor to eliminate the alleged unlawful practice by
14-20 conference, conciliation, and persuasion. The terms of a
14-21 conciliation agreement reached with a respondent may
14-22 require the respondent to refrain from the commission of
14-23 unlawful discriminatory practices in the future and make
14-24 such further provisions as may be agreed upon between the
14-25 administrator and the respondent. If a conciliation
14-26 agreement is entered into, the administrator shall issue
14-27 and serve on the complainant a final order stating its
14-28 terms. Except for the terms of the conciliation
14-29 agreement, neither the administrator nor any agent thereof
14-30 shall make public without the written consent of the
14-31 complainant and the respondent information concerning
14-32 efforts in the particular case to eliminate an unlawful
14-33 practice by conference, conciliation, or persuasion,
14-34 whether or not there is a determination of reasonable
14-35 cause or a conciliation agreement.
14-36 (f) In the event the administrator determines that there
14-37 is reasonable cause to believe that a respondent has
14-38 engaged in an unlawful practice as defined in this article
14-39 and the administrator's staff is unable to eliminate the
14-40 alleged unlawful practice by conference, conciliation, and
14-41 persuasion, the administrator shall issue a formal charge
14-42 of discrimination, stating that there is reasonable cause
14-43 to believe that a discriminatory act has taken place.
14-44 Such a charge shall include findings of fact and
-14-
15- 1 conclusions of law and shall be made available to all
15- 2 parties.
15- 3 (g) At the expiration of one year from the date of a
15- 4 conciliation agreement and at other times in its
15- 5 reasonable discretion, the administrator's staff may
15- 6 investigate whether the terms of the agreement have been
15- 7 and are being complied with by the respondent. The
15- 8 administrator shall report the findings to the complainant
15- 9 and respondent. If the administrator finds reasonable
15-10 cause to believe that the agreement has been breached, the
15-11 complainant may seek enforcement of the agreement in the
15-12 superior court of the county in which the alleged
15-13 violation took place or in the county of the respondent's
15-14 residence.
15-15 (h) The administrator shall issue to the complainant and
15-16 the respondent, 90 days from the date the complaint was
15-17 filed and every 90 days thereafter, a status report
15-18 summarizing any action taken with respect to the
15-19 complaint. The status reports required by this subsection
15-20 shall be issued until final resolution of the complaint.
15-21 1-2-37.
15-22 (a) The administrator may issue subpoenas in aid of
15-23 investigations under this article. Such subpoenas may
15-24 order witnesses or parties to appear at a particular place
15-25 and time and submit to questions and produce documents,
15-26 order a party to give access to premises or property under
15-27 the ownership or control of that party at a particular
15-28 time, order a witness or party to answer and swear to the
15-29 truth of written interrogatories within 30 days of
15-30 service, or order a witness or party to affirm or deny
15-31 written admissions within 30 days of service. The terms
15-32 contained in this subsection should be interpreted as are
15-33 similar terms contained in Code Sections 9-11-26 through
15-34 9-11-36.
15-35 (b) Witnesses summoned by a subpoena under this Code
15-36 section shall be entitled to the same witness and mileage
15-37 fees as witnesses in proceedings in superior courts. Fees
15-38 payable to a witness summoned by a subpoena issued at the
15-39 request of a party shall be paid by the party.
15-40 (c) If a party or witness fails or refuses to comply with
15-41 a subpoena issued under subsection (a) of this Code
15-42 section, the administrator may apply, through the Attorney
15-43 General for an order compelling compliance with the
-15-
16- 1 subpoena to the appropriate superior court. In
16- 2 considering the application for an order compelling
16- 3 compliance with the subpoena, the superior court may use,
16- 4 at its discretion, any of the remedies available under
16- 5 Code Section 9-11-37.
16- 6 1-2-38.
16- 7 (a)(1) When a charge of reasonable cause under Code
16- 8 Section 1-2-36 is issued, any party may elect to have
16- 9 the claims asserted in that charge decided in a civil
16-10 action brought by the Attorney General on behalf of the
16-11 aggrieved person as provided under paragraph (2) of this
16-12 subsection or to have the claims asserted in that charge
16-13 decided in an action brought before an administrative
16-14 law judge under the Office of State Administrative
16-15 Hearings as provided for in subsection (d) of this Code
16-16 section. In addition, any named complainant to a charge
16-17 of reasonable cause issued under Code Section 1-2-36 may
16-18 elect, without prejudice, to opt out of any action that
16-19 may be brought by the Attorney General or before an
16-20 administrative law judge. The election must be in
16-21 writing and must be received by the commission not later
16-22 than 20 days after the issuance of the determination.
16-23 The first election received by the commission controls
16-24 the choice of forum. In the absence of any valid
16-25 election, the administrator shall decide the forum. The
16-26 person making such election shall give notice of doing
16-27 so to all parties to whom the charge relates.
16-28 (2) If an election is made under paragraph (1) of this
16-29 subsection to have the claims asserted in a cause
16-30 determination brought by the Attorney General on behalf
16-31 of the aggrieved person in a civil action, the
16-32 administrator shall, within 30 days, refer the matter to
16-33 the Attorney General. Within 30 days of receipt of the
16-34 referral the Attorney General shall review the charge
16-35 and determine whether such findings are well grounded in
16-36 fact and warranted by law. If the Attorney General
16-37 concurs with the administrator's findings of fact and
16-38 conclusions of law, the Attorney General shall bring an
16-39 action in a superior court to enforce the provisions of
16-40 this article within the time allowed by the appropriate
16-41 statute of limitations. The action so filed shall be
16-42 styled 'Georgia Commission on Equal Opportunity, on
16-43 behalf of (the charging parties), and (any additional
16-44 plaintiffs) versus the respondents.' If the Attorney
-16-
17- 1 General disagrees with any or all of the administrator's
17- 2 findings of fact and conclusions of law, the Attorney
17- 3 General shall remand the matter back to the
17- 4 administrator, stating in writing, with particularity,
17- 5 the source and nature of the disagreement. Upon such
17- 6 remand, the administrator shall, after all necessary
17- 7 additional review and investigation, reissue the charge,
17- 8 dismiss the charge, amend the charge, or elect to have
17- 9 the matter heard before an administrative law judge as
17-10 provided for in subsection (e) of this Code section.
17-11 (b) The administrator shall have the power to engage in
17-12 efforts to conciliate and settle any matter brought by the
17-13 commission throughout the pendancy of the matter.
17-14 (c)(1) The court may impose the following civil fines if
17-15 the respondent has been adjudged to have committed an
17-16 unlawful discriminatory act or practice:
17-17 (A) Up to $50,000.00, if the respondent has not
17-18 previously been found guilty in any court of competent
17-19 jurisdiction of committing a practice illegal under
17-20 this article;
17-21 (B) Up to $250,000.00, if the respondent has
17-22 previously been found guilty in any court of competent
17-23 jurisdiction of committing a practice illegal under
17-24 this article.
17-25 (2) The court shall award reasonable attorneys' fees and
17-26 costs, including expert witness fees and other
17-27 reasonable litigation costs, to the administrator or
17-28 aggrieved person in any action in which the
17-29 administrator or aggrieved person prevails. No
17-30 attorneys' fees shall be awarded to a respondent in any
17-31 action in which the respondent prevails except for
17-32 abusive litigation as provided for in Article 5 of
17-33 Chapter 7 of Title 51.
17-34 (3) In addition to the remedies set forth in paragraphs
17-35 (1) and (2) of this subsection, the court may award:
17-36 (A) Preventive and equitable relief, including a
17-37 permanent or temporary injunction or other order
17-38 against the person responsible for the violation as is
17-39 necessary to assure the full and complete enjoyment of
17-40 the rights guaranteed by this article;
17-41 (B) Compensatory and punitive damages;
-17-
18- 1 (C) Sale, exchange, lease, rental, assignment, or
18- 2 sublease of real property to a person;
18- 3 (D) Return or placement of any person to a prior or
18- 4 appropriate placement in an educational institution;
18- 5 or
18- 6 (E) Requiring educational institutions to provide
18- 7 persons with the curriculum, finances, standards,
18- 8 instructional staff, technology, or other aspects of
18- 9 an adequate public education which supports the
18-10 person's development of essential competencies in
18-11 order that such person may realize his or her
18-12 potential.
18-13 (d) If an election is made under paragraph (1) of
18-14 subsection (a) of this Code section to have the claims
18-15 asserted in a cause determination brought before an
18-16 administrative law judge of the Office of State
18-17 Administrative Hearings, the hearing will be conducted
18-18 according to Chapter 13 of Title 50. The administrative
18-19 law judge shall have available all remedies available to a
18-20 superior court under this article. Judicial review of the
18-21 final decision of the administrative law judge shall be
18-22 governed by Chapter 13 of Title 50.
18-23 (e) If the administrator, at any time subsequent to the
18-24 filing of a complaint, determines, based upon evidence
18-25 admissible under Chapter 11 of Title 9, the 'Georgia Civil
18-26 Practice Act,' that there is good reason to believe that
18-27 an act prohibited by this Code section has or is about to
18-28 take place and will cause any aggrieved person to suffer
18-29 irremediable harm thereby, the administrator may issue a
18-30 temporary restraining order or order granting preliminary
18-31 or temporary relief. Such an order by the administrator
18-32 will contain the act or acts so enjoined, the preliminary
18-33 or temporary relief so ordered, and a proffer of the
18-34 evidence supporting the order. An order issued by the
18-35 administrator under this subsection may be served upon the
18-36 persons affected by the injunction in any manner necessary
18-37 to constitute actual notice of the order. An order issued
18-38 by the administrator under this subsection may be enforced
18-39 by the Attorney General in the superior court in which any
18-40 person or entity so enjoined resides and will expire in
18-41 five days after the service of the order. In addition to
18-42 the power granted by this subsection, the administrator
18-43 may seek, through the Attorney General's office, such
18-44 injunctive relief as is available under Code Section
-18-
19- 1 9-11-65. No order issued under this Code section will
19- 2 affect the initiation or continuation of administrative
19- 3 processing or procedures, nor will it diminish any rights
19- 4 or remedies available under this article.
19- 5 1-2-39.
19- 6 (a) The commission shall keep a record of every complaint
19- 7 that is filed with it.
19- 8 (b) No later than ten days after receipt of a written
19- 9 complaint of unlawful discrimination under subsection (b)
19-10 of Code Section 1-2-36, the commission shall notify the
19-11 complainants by certified mail of their right to pursue
19-12 the matter in superior court under the terms of this
19-13 article and deadlines or limitations on such rights and
19-14 shall set forth a timetable under which the complainant
19-15 must proceed.
19-16 (c) No complaint shall be filed under this article except
19-17 with the administrator of the Commission on Equal
19-18 Opportunity, the administrator's designee, or with the
19-19 superior courts. No complaint under this article may be
19-20 filed after the expiration of two years after the date
19-21 upon which the alleged unlawful practice occurred or the
19-22 last occurrence in a pattern of ongoing discriminatory
19-23 practices.
19-24 1-2-40.
19-25 All records of the commission shall be kept confidential
19-26 and shall not be disclosed except as required by order of
19-27 a court of competent jurisdiction or as otherwise provided
19-28 by law. The commission shall issue and make public an
19-29 annual report showing the number of complaints filed and
19-30 their status and disposition by type and number.
19-31 1-2-41.
19-32 (a) Any aggrieved person, within two years after the
19-33 occurrence of an allegedly discriminatory act, may
19-34 initiate suit in superior court under this article after
19-35 60 days from the filing a complaint with the commission.
19-36 Upon the application of any party, a jury trial shall be
19-37 directed to try the validity of any claim under this
19-38 article specified in the suit. All remedies available in
19-39 common-law tort actions shall be available to prevailing
19-40 plaintiffs in addition to any remedies provided by this
19-41 article or any other state statute. Prosecution of such
19-42 suit in superior court under this article shall constitute
-19-
20- 1 a withdrawal of a complaint filed with the commission
20- 2 during the pendency of such suit.
20- 3 (b) An aggrieved party may not commence a civil action
20- 4 under this article where the complaint forms the basis of
20- 5 a charge issued by the administrator, if the commission
20- 6 has commenced a hearing under this article with respect to
20- 7 such charge. In computing the two-year period specified
20- 8 in subsection (a) of this Code section, the time spent in
20- 9 administrative proceedings involving the complaint before
20-10 the commission under this article shall not be counted.
20-11 1-2-42.
20-12 (a) The Attorney General, based upon reasonable belief
20-13 that any person has been denied any of the rights
20-14 guaranteed by this article and where such denial raises an
20-15 issue of general public importance, may commence a civil
20-16 action for appropriate relief in superior court.
20-17 (b) The Attorney General may commence a civil action in
20-18 superior court for appropriate relief with respect to a
20-19 breach of conciliation agreement to which the commission
20-20 is a party referred to the Attorney General by the
20-21 administrator not later than 90 days after the referral of
20-22 the alleged breach.
20-23 (c) The Attorney General, on behalf of the administrator
20-24 or other party at whose request a subpoena is issued under
20-25 this article, may enforce such subpoena in appropriate
20-26 proceedings in the superior court in the county in which
20-27 the person to whom the subpoena was addressed resides, was
20-28 served, or transacts business.
20-29 (d) In a civil action brought by the Attorney General
20-30 under this Code section the court may use all remedies
20-31 found in subsection (c) of Code Section 1-2-38 or
20-32 subsection (a) of Code Section 1-2-41.
20-33 (e) Upon timely application, any person may intervene in a
20-34 civil action commenced by the Attorney General under this
20-35 article which involves an alleged discriminatory action to
20-36 which such person is an aggrieved party or a conciliation
20-37 agreement to which such person is a party. The court may
20-38 grant such appropriate relief to any such intervening
20-39 party as is authorized under subsection (c) of Code
20-40 Section 1-2-38 or subsection (a) of Code Section 1-2-41."
-20-
21- 1 SECTION 2.
21- 2 Article 2 of Chapter 19 of Title 45 of the Official Code of
21- 3 Georgia Annotated, known as the "Fair Employment Practices
21- 4 Act of 1978," is amended by striking in its entirety
21- 5 paragraph (1) of Code Section 45-19-22, relating to
21- 6 definitions applicable to said article, and inserting in
21- 7 lieu thereof a new paragraph (1) to read as follows:
21- 8 "(1) 'Administrator' means the administrator of the
21- 9 Commission on Equal Opportunity provided for by Code
21-10 Section 45-19-24, which agency is comprised of an Equal
21-11 Employment Division, and a Fair Housing Division, and a
21-12 Civil Rights Division."
21-13 SECTION 3.
21-14 Said article is further amended by striking in its entirety
21-15 subsection (a) of Code Section 45-19-23, relating to the
21-16 creation of the Board of Commissioners of the Commission on
21-17 Equal Opportunity, and inserting in lieu thereof a new
21-18 subsection (a) to read as follows:
21-19 "(a) A Board of Commissioners of the Commission on Equal
21-20 Opportunity is created. The board shall consist of nine
21-21 13 persons. Subject to confirmation by the Senate, the
21-22 members of the board shall be appointed by the Governor
21-23 for three-year terms, except as otherwise provided in this
21-24 subsection. Of the Governor's initial appointments, three
21-25 shall be for one-year terms, three shall be for two-year
21-26 terms, and three shall be for three-year terms. With
21-27 respect to the initial appointments of the four additional
21-28 members appointed after July 1, 1999, two shall be
21-29 appointed for two-year terms and two shall be appointed
21-30 for three-year terms. In the event of a vacancy during the
21-31 term of any member appointed by the Governor whether by
21-32 reason of death, resignation, or otherwise, the
21-33 appointment of a successor by the Governor shall be only
21-34 for the remainder of the unexpired term. The membership
21-35 of the board shall be representative of a fair and
21-36 reasonable cross section of the population of the state
21-37 and one-third of the members shall have experience in
21-38 labor or Title VII law enforcement or other legal human
21-39 rights experience; provided, however, that after July 1,
21-40 1993, at least three members of the board shall be
21-41 representative of or have a background in realty,
21-42 apartment management, or the building and contracting
21-43 industry."
-21-
22- 1 SECTION 4.
22- 2 All laws and parts of laws in conflict with this Act are
22- 3 repealed.
-22-
Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 03/10/00
