Support For Workplace Protections Growing In Georgia
by Graham White, graham@mccabe-lawfirm.com
Georgia is notorious for its lack of protections for employees in the workplace. While federal laws exist to protect employees from sexual harassment, different treatment on the basis of race, gender and other characteristics, or to institute minimum wage and overtime requirements for many workers, Georgia has almost no state laws providing similar protections. But House Bill 1390, which the state senate unanimously approved, may indicate that norms are shifting, albeit slowly.
HB 1390, filed by Rep. Teri Anulewicz, D-Cobb County and sponsored in the Senate by Sen. Elena Parent, D-DeKalb County, aims to protect employees of counties, municipalities, and other public entities from retaliation for opposing sexual harassment in the workplace. The bill, which would amend Chapter 5 of Title 34 of the Official Code of Georgia, currently sits on Gov. Kemp’s desk awaiting signature.
HB 1390’s definition of sexual harassment differs from the federal standard enshrined under Title VII. Under HB 1390, sexual harassment “means sexual advances, requests for sexual favors, sexual or sex-based conduct, or any other unwelcome and offensive conduct” where an employee is compelled to submit to the conduct as a condition of work, where submission to the conduct is the basis of a personnel decision, or where a reasonable person would believe that the conduct created a hostile or offensive working environment.
It should be noted that the bill does not prohibit sexual harassment in the workplace itself, but rather shields those who participate in protected conduct in the midst of sexual harassment. Protected conduct could mean filing a complaint about sexual harassment or participating in an investigation, hearing, or other proceeding having to do with the harassment, but the law also generally protects those who “[o]pposed sexual harassment.”
An example of conduct prohibited by the bill might look like this: a county employee, let’s say in its sanitation department, is continually subjected to sexual harassment by a coworker in the form of unwanted touching, sexual propositions, and lewd comments. Another coworker of the victim notices that this is occurring and encourages the victim to speak up, but she indicates that she is too frightened. The coworker who noticed the harassment reports the harassment to the county board of sanitation, who has the harasser removed from his position. The sanitation worker’s immediate supervisor is quite upset because he was best friends with the harasser, so he terminates the employee who reported the sexual harassment, ostensibly for poor work performance. The reporting coworker may have a cause of action against the county for retaliation because she believes the real reason for her termination was that she reported sexual harassment. Of course, if the victim had reported the harassment herself, she too would have been said to have participated in protected activity.
HB 1390 specifies that public employees may pursue injunctive relief, reinstatement, and all other damages allowable by law which includes compensatory damages for lost wages and benefits, as well as attorney’s fees.
HB 1389, entitled the “Georgia Safe Workplaces Act”, was HB 1390’s sister bill and would have extended similar protections to all employees in the state of Georgia, even those in the private sector. It died in the legislature earlier this month.
While there is still much that could be done to adequately protect Georgia’s workers from discrimination in the workplace, including sexual harassment, HB 1390’s unanimous passage and broad language signify a change in Georgia’s political culture from one that has traditionally disavowed any sort of protections for employees.