Georgia law prohibits private employers from discriminating against employees on the basis of age, disability and sex (specifically compensation-based claims).¹ There are, however, no state statutes prohibiting private employers from discriminating against employees on the basis of the other categories traditionally protected by the Civil Rights Act of 1964 (“Title VII”), i.e., race, color, sex (more broadly), national origin, and religion. In the absence of those protections, six Georgia cities have recently passed ordinances prohibiting discrimination based on Title VII-protected categories and others, including gender identity and sexual orientation.

For almost 20 years, Atlanta was the sole municipality in the state prohibiting discrimination in private employment, including on the basis of gender identity and sexual orientation.² Within the last two years, however, the cities of Dunwoody, Chamblee, Doraville, Decatur, Clarkston, and now Brookhaven have enacted their own anti-discrimination protections.³ To date, Georgia still has not enacted any legislation protecting LGBTQ+ individuals from discrimination on the basis of their sexual orientation or gender identity in the workplace.

As noted, on January 14, 2020, the City of Brookhaven became the latest city in the Atlanta metro area to pass an anti-discrimination ordinance including gender identity and sexual orientation as protected categories.⁴ The ordinance, which embraces the city’s “principle of being friendly, welcoming, and encouraging to business,”⁵ and furthers its goal to “extend its leadership in the Metro Atlanta area…to civil rights and recognition of the rights of all of its citizens”⁶ prohibits any person or entity “that employs one or more employees in the City of Brookhaven” from “subjecting any person to differential treatment as a result of that person’s actual or perceived race, color, religion, national origin, sex, sexual orientation, gender identity, age, disability, marital status, familial status, or veteran status.”⁷ The law took full effect on February 13, 2020.⁸

Georgia’s City Ordinances Outline Nearly Identical Complaint and Mediation Procedures

Brookhaven’s law authorizes it to investigate complaints of discrimination filed within 90 calendar days of the alleged act.⁹ Similarly, the cities of Dunwoody, Chamblee, Doraville, Decatur, and Clarkston require employees to make their complaints within 60¹⁰ or 90 days.¹¹  

Following submission of a timely filed complaint, Brookhaven, and Doraville parties are provided the option of submitting to non-binding private mediation with costs to be shared equally.¹²

Clarkston’s mediation program is also voluntary, but the city pays for two hours of a mediator’s fees and then splits any fees and costs incurred thereafter between the complainant and respondent unless they agree to another arrangement.¹³ Similarly, Decatur allows the parties to choose whether to mediate and the city pays the mediator’s fees and costs incurred up to a maximum of six hours.¹⁴

In contrast, mediation in Chamblee and Dunwoody is voluntary for the respondent; however, “the case shall be dismissed should the complainant not attend or [fail to] show just cause for not participating.”¹⁵ Thus, while those cities assert that mediation participation is voluntary, in practice, it appears that mediation is mandatory for complainants. Notably, neither Chamblee nor Dunwoody’s city ordinances clarify how mediation fees and costs should be allocated between the parties if mediation is successful; however, the prevailing party in the post-mediation process (discussed further below) is entitled to a retroactive award of its mediation fees and costs.

Brookhaven and Clarkston’s Civil Penalties Pack a Punch While Other Georgia Cities Impose Miniscule Cash Fines

Where mediation is unsuccessful, each city allows the employer to answer the employee’s complaint (after confirming the complaint conforms to filing requirements)¹⁶ and permits a hearing or municipal court trial.¹⁷ The parties present evidence and the appointed hearing officer or municipal court judge makes a determination.¹⁸

In Brookhaven, first and second violations of the ordinance will result in $1,000 and $2,000 civil penalties, respectively.¹⁹ After a third violation, however, the ordinance requires that “[a]ny business penalized three (3) times shall lose their right to operate in the City of Brookhaven.”²⁰ Thus, Brookhaven employers risk a complete shutdown of operations following repeated violations of the ordinance. Significantly, the law does not address how an employer may reinstate its business license – other than through appeal as discussed in greater detail below.  

In Decatur, an employer’s first violation shall result in a $500 civil penalty and $1,000 for any subsequent violations,²¹ while Doraville caps civil penalties against employers at just $500 per violation with no heightened fines for repeat violators.²² In Dunwoody and Chamblee, findings of a violation shall result in a civil penalty of $500 for the first violation, $1,000 for subsequent violations, and assessment of mediator and hearing officer fees against the non-prevailing party, unless the hearing officer determines that an alternate cost assessment is warranted.²³

Additionally, in lieu of a cash fine, Chamblee’s ordinance allows the hearing officer to recommend, for a final vote by city council, suspension or revocation of a business’s occupation tax certificate.²⁴

In Clarkston, the enforcement arm of the ordinance is unique. If there is a finding of a violation, the hearing officer must make two recommendations to the City Council.²⁵ First, the hearing officer must recommend a potential voluntary settlement, which may include equitable remedies or a civil penalty of no more than $1,000. Then, the hearing officer also must recommend temporary suspension or revocation of at least one (or more) of the employer’s permits or licenses.²⁷ An employer may avoid a City Council decision to suspend or revoke its license(s) by accepting the hearing officer’s proposed settlement or by settling privately with the complainant.²⁸ Otherwise, only a majority vote of the City Council is required to pass suspension or revocation of one or more of the respondent’s business licenses.²⁹

In Most Cities, Employers Can Appeal Findings of a Violation

In Brookhaven, Clarkston, Dunwoody, and Doraville, employers may appeal a violation finding to the Superior Court of DeKalb County within 30 days.³⁰ In Chamblee, parties may appeal to the Chamblee Municipal Court within 14 calendar days of the hearing officer’s final ruling.³¹ Decatur’s ordinance provides no avenue for appeal.

Conclusion

Employers should be aware that some of Georgia’s cities are passing local ordinances to protect employees against discrimination on the basis of characteristics that are not protected either by Georgia statutes or, in some instances, explicitly by federal law.  While the ordinances impose minimal financial penalties against employers violating them, a few require more severe penalties resulting in business disruption via suspension or revocation of business licenses. Defending against or mediating such claims and appealing adverse findings also could result in significant costs to employers depending on the nature of the claims and the number of employees involved.  Thus, prudent employers would be wise to ensure that managers engage in sound, unbiased decision-making, that employees engage in appropriate workplace conduct, and that their businesses invest in training and other educational opportunities to support good business practices.