O.C.G.A. § 45-19-29 (2019)

Annotations

Cross references. - 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). Burden of proving or disproving discrimination in ‘‘disparate impact’’ case. - 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). Burden of proving or disproving discrimination in ‘‘disparate treatment’’ cases. - 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). Burden of proof in sex discrimination case. - 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).

Race discrimination. - 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). Requisites of prima-facie case of ‘‘disparate treatment.’’ - 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). Subjective evaluation against objective standards not ‘‘facially-neutral.’’ - 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

PUBLIC OFFICERS & EMPLOYEES

in meeting defendant’s burden. Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985). Evidence sufficient to support find-

ing of discrimination on the basis of sex. - 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. Complainant’s election in filing action. - Under the two respective statutes, Ga. L. 1978, p. 859 (see now O.C.G.A. §§ 45-19-29 and 45-20-4), 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. C.J.S. - 14A C.J.S., Civil Rights, §§ 215, 216, 220, 221, 222, 612 et seq. ALR. - Discrimination because of race, color, or creed in respect of appointment, duties, compensation, etc., of schoolteachers or other public officers or employees, 130 ALR 1512. Marriage as ground for discharge of one employed in public service other than as teacher, 135 ALR 1346. Exclusion of or discrimination against a physician or surgeon by hospital, 37 ALR3d 645; 28 ALR5th 107. Constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 ALR3d 1213. Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 ALR3d 944. Mandatory retirement of public officer or employee based on age, 81 ALR3d 811. Recovery of damages as remedy for wrongful discrimination under state or

local civil rights provisions, 85 ALR3d 351. Application of state law to sex discrimination in employment, 87 ALR3d 93. Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 ALR4th 310. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 ALR4th 265. Damages and other relief under state legislation forbidding job discrimination on account of handicap, 78 ALR4th 435. Discrimination ‘‘because of handicap’’ or ‘‘on the basis of handicap’’ under state statutes prohibiting job discrimination on account of handicap, 81 ALR4th 144. What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 ALR4th 26. Judicial construction and application of state legislation prohibiting religious discrimination in employment, 37 ALR5th 349.

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. What constitutes substantial limitation on major life activity of working for purposes of state civil rights acts, 102 ALR5th 1. Necessity of, and what constitutes, employer’s reasonable accommodation of employee’s religious preference under state law, 107 ALR5th 623. What constitutes racial harassment in employment violative of state civil rights acts, 17 ALR6th 563. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress - ethnic, racial, or religious harassment or discrimination, 19 ALR6th 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 ALR6th 1. What constitutes employer’s reasonable

accommodation of employee’s religious preferences under Title VII of Civil Rights Act of 1964, 134 ALR 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 ALR Fed. 405. What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - private employment cases, 150 ALR Fed. 1. What constitutes racial harassment in employment violative of Title VII of Civil Rights Act of 1964 (42 USCA § 2000e et seq.), 156 ALR 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 ALR 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 ALR Fed. 1.