O.C.G.A.
O.C.G.A.

O.C.G.A. § 34-1-2 (2019)

Prohibition of age discrimination in employment

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) No person, firm, association, or corporation carrying on or conducting within this state any business requiring the employment of labor shall refuse to hire, employ, or license nor shall such person, firm, association, or corporation bar or discharge from employment any individual between the ages of 40 and 70 years, solely upon the ground of age, when the reasonable demands of the position do not require such an age distinction, provided that such individual is qualified physically, mentally, and by training and experience to perform satisfactorily the labor assigned to him or for which he applies. Nothing in this Code section shall affect the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this Code section. When the retirement or insurance benefit program of any employer shall prohibit the employment of any person because of excessive age, such person shall have the authority, as a condition of employment, to waive the right to participate in any such program and receive any benefits therefrom. Nothing in this Code section shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age and

who, for the two-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $27,000.00. (b) Any person or corporation who violates any provision of subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100.00 nor more than $250.00.

History

(Ga. L. 1971, p. 384, §§ 1, 2; Ga. L. 1981, p. 636, § 1.)

Annotations

Cross references. - Equal protection, U.S. Const., amend. 14 and Ga. Const. 1983, Art. I, Sec. I, Para. II. Discrimination in public employment on basis of age, race, sex, § 45-19-20 et seq. Compulsory retirement of pilots engaged in conducting vessels to and from ports, § 52-6-53. Law reviews. - For annual Eleventh

JUDICIAL DECISIONS Provisions of O.C.G.A. §§ 51-1-6 and 51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000). Cited in Spencer v. Moore Bus. Forms, Inc., 87 F.R.D. 118 (N.D. Ga. 1980); Bruce v. S & H Riggers & Erectors, Inc., 732 F. Supp. 1172 (N.D. Ga. 1990).

No private cause of action. - Penal statutes in Georgia, such as O.C.G.A. § 34-1-2, do not give rise to a private cause of action for the conduct proscribed. Calhoun v. Federal Nat’l Mtg. Ass’n, 823 F.2d 451 (11th Cir. 1987), cert. denied, 484 U.S. 1078, 108 S. Ct. 1058, 98 L. Ed. 2d 1019 (1988); Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989). At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or O.C.G.A. § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 528 S.E.2d 238 (2000).

RESEARCH REFERENCES crimination in Employment Act, 44 POF3d 79. Contingent Worker’s Protection Under Federal Anti-Discrimination Statutes, 57 POF3d 75. Am. Jur. Trials. - Age Discrimination in Employment under ADEA, 75 Am. Jur. Trials 363. C.J.S. - 14A C.J.S., Civil Rights, § 287 et seq. 51 C.J.S., Labor Relations, § 10.

Am. Jur. 2d. - 45A Am. Jur. 2d, Job Discrimination, §§ 18, 19. 45B Am. Jur. 2d, Job Discrimination, §§ 703, 1225 et seq. Am. Jur. Proof of Facts. - Discrimination - Under Age Discrimination in Employment Act, 10 POF2d 1. Age as Bona Fide Occupational Qualification Under ADEA, 15 POF2d 481. Proof of Discrimination Under Age Dis-

Application of Age Discrimination in Employment Act (29 U.S.C.S. § 621 et seq.) to religious institutions, 136 ALR Fed 487. Who is ‘‘employer’’ within meaning of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 621 et seq.), 137 ALR Fed 551. Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 ALR Fed. 347. What constitutes direct evidence of age discrimination in action under age discrimination in employment act (29 U.S.C.A. § 621 et seq.) - Post-Price Waterhouse cases, 155 ALR Fed. 283. Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against ‘‘employer’’, 160 ALR Fed. 441. What constitutes willful violation under age discrimination in employment act (29 U.S.C.A. § 626 et seq.) entitling victim to liquidate damages, 165 ALR Fed. 1. Disparate impact claims under Age Discrimination Act of 1967, 29 U.S.C.A. § 621 et seq., 186 ALR Fed. 1. Discrimination against younger persons in favor of older persons (reverse age discrimination), 6 A.L.R.7th 7.

ALR. - Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 ALR3d 351. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 ALR4th 853. Award of front pay under state job discrimination statutes, 74 ALR4th 746. Application of state law to age discrimination in employment, 51 ALR5th 1. Availability and scope of punitive damages under state employment discrimination law, 81 ALR5th 367. Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 ALR5th 1. Circumstances which warrant finding of constructive discharge in cases under Age Discrimination in Employment Act (29 USC § 621 et seq.), 93 ALR Fed. 10. Who, other than specifically excluded persons, is ‘‘employee’’ under § 4(a)(1) of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 623(a)(1)), 125 ALR Fed. 273. Employee’s retention of benefits received in consideration of promise not to enforce claims under Age Discrimination in Employment Act as ratification of otherwise invalid or voidable waiver under § 7(f )(1) of act (29 U.S.C.S. § 626(f )(1)), 128 ALR Fed. 577.

Notes of Decisions
Cited in 16 cases (4 in the last 5 years), 1987–2025 · leading case: Reilly v. Alcan Aluminum Corp., 528 S.E.2d 238 (Ga. 2000).
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Reilly v. Alcan Aluminum Corp., 528 S.E.2d 238 (Ga. 2000). · cites it 8× “? (2) Does OCGA § 51-1-6 or § 51-1-8 give rise to a cognizable claim for breach of a legal duty where the duty allegedly breached is the violation of OCGA § 34-1-2? For the reasons that follow, we answer both of these questions in the negative.”
Stevenson v. Superior Court, 97 Cal. Daily Op. Serv. 6918 (Cal. 1997). · cites it 2× “043; Ga. Code Ann. §§ 34-1-2 (a), 45-19-20 et seq.”
City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995). · cites it 4× “IV (religious discrimination in holding public office or trust); OCGA §§ 34-1-2 (age discrimination in employment); 34-5-1 et seq.”
Amick v. Bm & Km, Inc., 275 F. Supp. 2d 1378 (N.D. Ga. 2003). · cites it 4× “The Reilly plaintiff filed suit in this court, claiming that he had been discharged on the basis of age, in violation of Ga.Code Ann. § 34-1-2, a state statute prohibiting age discrimination.”
Bruce v. S & H Riggers & Erectors, Inc., 732 F. Supp. 1172 (N.D. Ga. 1990). · cites it 11× “(“ERISA”) and O.C.G.A. § 34-1-2. Currently before the court is defendants’ motion for summary judgment.”
Mattox v. Yellow Freight Sys., Inc., 534 S.E.2d 561 (Ga. Ct. App. 2000). · cites it 4× “10 In that case, the Supreme Court held that OCGA § 51-1-6 does not give rise to a cognizable claim for breach of a legal duty where the duty breached was the violation of OCGA § 34-1-2, which prohibits age discrimination in employment.”
Borden v. Johnson, 395 S.E.2d 628 (Ga. Ct. App. 1990). · cites it 2× “See OCGA § 18-4-7 (which prohibits the discharge of any employee because his earnings have been subjected to garnishment for any one indebtedness); OCGA § 34-1-2 (which criminalizes the discharge of employees on the basis of age); OCGA § 34-1-3 (which authorizes an employee who…”
Suber v. Bulloch Cnty. Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989). · cites it 4× “In Count Ten of the complaint plaintiff alleges that she was discriminated against on the basis of age in violation of O.”
Wisdom v. M.A. Hanna Co., 978 F. Supp. 1471 (N.D. Ga. 1997). · cites it 10× “Specifically, Plaintiff contends that O.C.G.A. § 34-1-2 (which criminalizes age discrimination in employment) and the ADEA create legal duties enforceable under O.”
Calhoun v. Fed. Nat'l Mortg. Ass'n, 823 F.2d 451 (11th Cir. 1987). · cites it 3× “§§ 1716 -1723h, and Georgia’s Prohibition of Age Discrimination in Employment statute, O.C.G.A. § 34-1-2. The district court held that neither the Charter Act nor the Georgia Act provided a private right of action, and dismissed those claims.”
Reilly v. Alcan Aluminum Corp., 181 F.3d 1206 (11th Cir. 1999). · cites it 4× “Although the text of the complaint briefly mentioned Georgia’s statute prohibiting age discrimination in employment, Ga.Code Ann. § 34-1-2, Reilly .sought to amend his complaint to add explicitly the factual allegations that could give rise to an additional count under §§ 51-1-6…”
Jackson v. Auto Club Servs., Inc. (N.D. Ga. 2023). · cites it 2× “(“ELCRA), and Georgia’s Age Discrimination Act, Ga. Code Ann. § 34-1-2 (“GADA”). III. LAW & ANALYSIS A.”
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