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

O.C.G.A. § 45-19-38 (2019)

Findings, conclusions, and order of special master generally; order to cease and desist from unlawful practice and to take remedial action

✓ 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) If the special master determines that the respondent has not engaged in an unlawful practice, the special master shall state the special master’s findings of fact and conclusions of law and shall issue a final order, within 30 days after the hearing unless, for good cause shown, such time is extended by the Governor, dismissing the complaint. (b) If the special master determines that the respondent has engaged in an unlawful practice, the special master shall state the special master’s findings of fact and conclusions of law and shall issue a final order, within 30 days after the hearing unless, for good cause shown, such time is extended by the Governor, requiring the respondent to cease and desist from the unlawful practice and to take such remedial action as in the judgment of the special master will carry out the purposes of this article. (c) Remedial action under this Code section may include but is not limited to: (1) Hiring, reinstatement, or upgrading of employees with or without back pay. No award of back pay shall be ordered pursuant to this article with respect to any period more than two years prior to the date of the filing with the administrator of the complaint with respect to which such award of back pay is ordered. Interim earnings, unemployment benefits, workers’ compensation benefits, or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable; (2) Admission or restoration of individuals to participate in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program and the utilization of objective criteria in the admission of individuals to such programs; (3) The extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges, and services of the respondent;

(4) Reporting as to the manner of compliance; (5) Posting notices in conspicuous places in the respondent’s place of operation in the form prescribed by the administrator or special master; (6) Restoration of employment benefits not otherwise specified in this Code section; or (7) Recommending to the Governor that the respondent be required to adopt and file with the administrator, within a specified time limitation, for the administrator’s approval 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. (d) Any monetary award ordered pursuant to this article shall be for actual damages only. (e) The respondent shall comply without delay with the terms and conditions of such a final order.

History

(Ga. L. 1978, p. 859, § 16; Ga. L. 1983, p. 1097, § 1; Ga. L. 1995, p. 1302, § 10.)

Annotations

JUDICIAL DECISIONS Attorney’s fees. - There is no relationship between O.C.G.A. § 45-19-38(d) and O.C.G.A. § 45-19-39(c). The reference to ‘‘this article’’ in § 45-19-38(d) relates only to the remedial award of the special master; the provision of § 45-19-39(c) with respect to attorney’s fees provides a remedy over and above that of the special master and is not governed by § 45-19-38(d). Robinson v. Department of Cors., 211 Ga. App. 134, 438 S.E.2d 190 (1993). O.C.G.A. § 45-19-38(c), in context, inherently authorizes the special master to award attorney’s fees. Robinson v. Department of Cors., 211 Ga. App. 134, 438 S.E.2d 190 (1993). Award of attorney’s fees discretionary. - O.C.G.A. § 45-19-38(d) vests the special master with sufficient discretion to award attorney fees as a part of making the claimant whole for the injuries suffered, even apart from O.C.G.A. § 45-19-39(c). Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985). Award of attorney’s fees only when incurred. - Appellant was not authorized to recover attorney’s fees because

appellant had incurred none, and no successful claimant in a Fair Employment Practices Act (FEPA), O.C.G.A. § 45-19-20 et seq., case can recover attorney’s fees when none were actually incurred unless and until the General Assembly authorizes a recovery. Finney v. Department of Cors., 263 Ga. 301, 431 S.E.2d 361 (1993). Monetary damages available. - Georgia Whistle Blower Statute (Act), O.C.G.A. § 45-1-4, does not provide a remedy of monetary damages for public employees as: (1) the legislature did not specifically include a monetary damages remedy, such as the remedy provided by the Georgia Fair Employment Practices Act, specifically O.C.G.A. § 45-19-38(c); (2) the limitations of statutes waiving sovereign immunity have to be strictly followed; and (3) to ‘‘set aside’’ an action, the language used in the Act, consistent with the accepted definition of ‘‘set aside,’’ requires the action to be vacated, cancelled, and annulled. Hughes v. Ga. Dep’t of Corr., 267 Ga. App. 440, 600 S.E.2d 383 (2004). Issue of remedial action is separate from attorney’s fees. - The issue of

PUBLIC OFFICERS & EMPLOYEES

entitlement to recovery of attorney’s fees under O.C.G.A. § 45-19-39(c) is a separate issue from entitlement to a recovery of attorney’s fees in a special master proceeding. Finney v. Department of Cors., 263 Ga. 301, 434 S.E.2d 45 (1993). Incumbents not to be removed to remedy wrong. - When an order instating the person discriminated against requires an ‘‘innocent person’’ to step down from this position, alternative remedies must be considered because of the expected resistance from and sense of un-

fairness to the incumbents of jobs who were not themselves engaged in discrimination and who had settled expectations in their jobs. Kilmark v. Board of Regents, 175 Ga. App. 857, 334 S.E.2d 890 (1985). Special master’s findings held without probative evidentiary support. - See Council v. Board of Regents, 186 Ga. App. 629, 368 S.E.2d 167, cert. denied, 186 Ga. App. 917, 368 S.E.2d 167 (1988). Cited in Georgia Dep’t of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981).

RESEARCH REFERENCES Am. Jur. 2d. - 2 Am. Jur. 2d, Administrative Law, § 422 et seq. 15 Am. Jur. 2d, Civil Rights, § 15 et seq. C.J.S. - 14A C.J.S., Civil Rights, §§ 739, 740. ALR. - Recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination, 40 ALR3d 1290. Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 ALR3d 351.

Requiring apology as ‘‘affirmative action’’ or other form of redress under State Civil Rights Act, 85 ALR3d 402. Right of prevailing defendant to recover attorney’s fees under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5 (k)), 134 ALR Fed 161. Reductions to back pay awards under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.), 135 ALR Fed 1.

Notes of Decisions
Cited in 13 cases (2 in the last 5 years), 1985–2024 · leading case: Finney v. Dep't of Corr., 434 S.E.2d 45 (Ga. 1993).
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Finney v. Dep't of Corr., 434 S.E.2d 45 (Ga. 1993). · cites it 66× “Nothing in OCGA § 45-19-38 expressly authorizes a special master to award reasonable attorney's fees to a successful claimant.”
Kilmark v. Bd. of Regents, 334 S.E.2d 890 (Ga. Ct. App. 1985). · cites it 20× “OCGA § 45-19-38 (b) and (c) vests the special master with authority to take such remedial action as in his or her judgment will rectify the unlawful employment practices so as to carry out the purpose of the statute, and such remedial action may include "[h]iring, reinstatement,…”
Robinson v. Dep't of Corr., 438 S.E.2d 190 (Ga. Ct. App. 1993). · cites it 18× “, actual damages only, citing OCGA § 45-19-38 (d). Williams petitioned for judicial review, enumerating as error the special master’s deduction of unemployment compensation benefits from her back pay award, refusal to award prejudgment interest, and refusal to award attorney…”
Hughes v. Georgia Dep't of Corr., 600 S.E.2d 383 (Ga. Ct. App. 2004). · cites it 4× “1 OCGA § 45-19-38 (c). We doubt the legislature used different language for resolving claims by employees under the Act and under the FEPA without intending a real distinction between the remedies.”
Williamson v. Dep't of Human Resources, 572 S.E.2d 678 (Ga. Ct. App. 2002). · cites it 2× “OCGA § 45-19-38 (b), (d). 5 Thus, the state by legislative act specifically waived its sovereign immunity to the extent of the action authorized by the FEPA.”
State of Georgia v. Sun States Ins. Grp., Inc.; Regulatory Tech., Inc. v. State of Georgia, 770 S.E.2d 43 (Ga. Ct. App. 2015). · cites it 4× “29 Williamson, supra at 116 (1); OCGA § 45-19-38 (c). 30 OCGA § 45-19-38 (d).”
Tammie Ackelson v. Manley Toy Direct, L.L.C. & Toy Network, L.L.C. v. Manley Toy Direct, L.L.C.. & Toy Network, L.L.C., 832 N.W.2d 678 (Iowa 2013). “, Ga.Code Ann. §§ 45-19-38 to -39, (West 2003) (providing for resolution of complaints by a special master with an opportunity to appeal to a district court); N.”
Columbus Foundries, Inc. v. Moore, 333 S.E.2d 212 (Ga. Ct. App. 1985). · cites it 4× “See OCGA § 45-19-38 (b). "Discretion," Black's Law Dictionary explains, when referring to the discretionary action of a judge or court, means "discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained.”
Anstadt v. Bd. of Regents of Univ. Sys. Ga., 693 S.E.2d 868 (Ga. Ct. App. 2010). · cites it 2× “24 OCGA §§ 45-19-38 (b), (d); 45-19-40. 25 Williamson, supra at 116 .”
Augusta Jud. Circuit Off. of the Pub. Def. v. Necia Hodge-Peets (Ga. Ct. App. 2024). · cites it 4× “” OCGA 11 § 45-19-21 (a) (3). The Act also provides that it is to be broadly construed, and it does not intend “to exclude local or federal laws on the same subject matter” that are not inconsistent with its purpose.”
Musson v. Jones (S.D. Ga. 2023). · cites it 2× “O.C.G.A. § 45-19-38(b), (d). Accordingly, because a specific Georgia statute created a right of action against the state, as an employer, which could result in a judgment for back pay and other actual damages, the state has “specifically waived its sovereign immunity for actions…”
Council v. Bd. of Regents of Univ. Sys., 368 S.E.2d 167 (Ga. Ct. App. 1988). · cites it 2× “OCGA § 45-19-38 authorizes an award of back pay, and provides that it shall be reduced by interim earnings, unemployment compensation, workers’ compensation benefits, and amounts earnable with *632 reasonable diligence.”
Show all 13 citing cases →
— 45-19-38(b) — 1 case
Musson v. Jones (S.D. Ga. 2023). “O.C.G.A. § 45-19-38(b), (d). Accordingly, because a specific Georgia statute created a right of action against the state, as an employer, which could result in a judgment for back pay and other actual damages, the state has “specifically waived its sovereign immunity for actions…”
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