TITLE 34 LABOR AND INDUSTRIAL RELATIONS

Section 1. General Provisions, 34-1-1 through 34-1-10.

34-1-2. Prohibition of age discrimination in employment.

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.
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.

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

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 Circuit survey of employment discrimination, see 42 Mercer L. Rev. 1381 (1991). For survey of 1995 Eleventh Circuit cases on employment discrimination, see 47 Mercer L. Rev. 797 (1996). For annual Eleventh Circuit survey of employment discrimination, see 56 Mercer L. Rev. 1233 (2005). For note, "Employer Beware: Changing the Landscape of Employment Discrimination Claims at the Summary Judgment Stage," see 68 Mercer L. Rev. 1145 (2017).

JUDICIAL DECISIONS

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).

Provisions of O.C.G.A. §§ 51-1-6 and51-1-8 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).

RESEARCH REFERENCES

Am. Jur. 2d.

- 45A Am. Jur. 2d, Job Discrimination, §§ 18, 19. 45B Am. Jur. 2d, Job Discrimination, §§ 703, 1225 et seq.

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 Discrimination in Employment Act, 44 POF3d 79.

Contingent Worker's Protection Under Federal Anti-Discrimination Statutes, 57 POF3d 75.

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.

ALR.

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

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

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.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

Circumstances which warrant finding of constructive discharge in cases under Age Discrimination in Employment Act (29 USC § 621 et seq.), 93 A.L.R. 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 A.L.R. 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 A.L.R. Fed. 577.

Application of Age Discrimination in Employment Act (29 U.S.C.S. § 621 et seq.) to religious institutions, 136 A.L.R. Fed 487.

Who is "employer" within meaning of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 621 et seq.), 137 A.L.R. 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 A.L.R. 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 A.L.R. 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 A.L.R. 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 A.L.R. Fed. 1

Disparate impact claims under Age Discrimination Act of 1967, 29 U.S.C.A. § 621 et seq., 186 A.L.R. Fed. 1

Discrimination against younger persons in favor of older persons (reverse age discrimination), 6 A.L.R.7th 7.

Cases Citing O.C.G.A. § 34-1-2

Total Results: 4 | Sort by: Relevance | Newest First

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Reilly v. Alcan Aluminum Corp., 528 S.E.2d 238 (Ga. 2000).

Cited 34 times | Published | Supreme Court of Georgia | Mar 27, 2000 | 272 Ga. 279, 2000 Fulton County D. Rep. 1130, 16 I.E.R. Cas. (BNA) 211, 82 Fair Empl. Prac. Cas. (BNA) 483

...ed is the violation of the Age Discrimination in Employment Act (ADEA), 29 USC § 621 et seq.? (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....

...In this regard, Reilly contended that Alcan used a "grade-age matrix" in making personnel decisions, and that Reilly's age impermissibly influenced Alcan's decision to terminate him. Reilly also alleged that Alcan violated Georgia's age discrimination statute, OCGA § 34-1-2, in terminating him, and that in doing so, Alcan violated public and private duties created by §§ 51-1-6 and 51-1-8....

...The district court dismissed Reilly's complaint for failure to state a claim upon which relief can be granted, ruling, among other things, that neither § 51-1-6 nor § 51-1-8 creates a cause of action for the alleged underlying violation of the ADEA or § 34-1-2....

...mployee doctrine. Moreover, when the General Assembly enacted Georgia's age discrimination statute in 1971, [7] it did not provide a civil remedy, but instead only provided for criminal misdemeanor penalties. The failure to provide a civil remedy in § 34-1-2 is significant considering that the General Assembly has created specific civil remedies in other areas of employer action against employees [8] and considering that the General Assembly is presumed to have enacted the statute with knowledg...

...did not specifically provide a civil action as a remedy when enacting Georgia's age discrimination statute, although it has specified such remedies in other areas of employer-employee relations; and because the specific provisions of §§ 34-7-1 and 34-1-2 must control over the more general tort provisions of §§ 51-1-6 and 51-1-8, we conclude that the General Assembly did not intend for age-discrimination to provide the basis for a tort of wrongful discharge in this State. We therefore conclude that the general tort provisions of §§ 51-1-6 and 51-1-8 cannot be read so as to create a civil action for age discrimination based upon a violation of either § 34-1-2 or the ADEA....

...fers damage thereby. [6] OCGA § 51-1-8 provides that "[p]rivate duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action." [7] OCGA § 34-1-2....

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City of Atlanta v. McKinney, 265 Ga. 161 (Ga. 1995).

Cited 27 times | Published | Supreme Court of Georgia | Mar 14, 1995 | 454 S.E.2d 517

...Georgia law, like federal law, recognizes and protects certain classifications of people from discrimination. Ga. Const. of 1983, Art. I, Sec. I, Par. II (state equal protection), Par. IV (religious discrimination in holding public office or trust); OCGA §§ 34-1-2 (age discrimination in employment); 34-5-1 et seq....

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