It's Monday morning and you start your day as you have for the past ten years as the attorney for your Georgia county government. Just as you have finished your hot morning beverage, you receive a distressed call from the personnel director telling you that she has just received a call from an employee with the Commission on Equal Employment regarding a complaint filed by one of your county employees alleging that employees in her department had conspired to engage in discriminatory actions against her and certain other employees within that department. The Commission on Equal Employment representative has in turn asked to schedule interviews within the department. He has also outlined an extensive request for documents and personnel files to be reviewed and requested to interview several employees in the department. The department head now will rely on your counsel to get them through this process.
You are now wrapping your head around this issue and trying to figure out what this is about, when suddenly you receive a call from one of your County Commissioners' Offices. Apparently news of this charge of discrimination has now spread throughout county government and leaked to the local media. Welcome to the world of the Georgia Fair Employment Practices Act.
Knowing the rules regarding the Georgia Fair Employment Practices Act will help you to get through this very difficult time.
The Georgia Fair Employment Practices Act was enacted in response to a series of federal statutes outlawing discrimination in employment.1 Many of the federal statutes permitted the establishment of state or local agencies to have concurrent jurisdiction over their employment practices. In response to this permissibility of concurrent jurisdiction, in 1978 the Georgia General Assembly adopted the Georgia Fair Employment Practices Act ("FEPA").2 FEPA was designed to eliminate all forms of discrimination in public employment based on race, color, religion, national origin, sex, handicap, or age.3 It also provides public employees with an option to submit claims of discrimination to a state agency, rather than the Equal Employment Opportunity Commission ("EEOC"), the governing federal agency responsible for these claims.4
Types of Prohibited Discriminatory Conduct
At its core, FEPA prohibits discrimination with reference to hiring, discharge, or discrimination against individuals with respect to compensation, the terms, conditions, and privileges of employment based on an individual's race, color, religion, national origin, sex, handicap, or age. Additionally, Georgia law allows the use of cases interpreting Title VII to serve as legal precedent.5
The second type of unlawful conduct prohibits any effort to limit, segregate, or classify employees in any way that intends to or deprives them of individual employment opportunities or affect their status as an employee based on race, color, religion, national origin, sex, handicap, or age.
The third type of prohibited conduct prevents the hiring, promotion, or advancement of an employee or any attempt to segregate or affirmatively hire an individual based solely on race, color, religion, national origin, sex, handicap, or age.
The fourth type of prohibited conduct deals with apprenticeships and other training or retraining programs. FEPA prohibits discrimination in government sponsored apprenticeships and training programs based upon race, color, religion, national origin, sex, handicap, or age.
The final type of unlawful conduct prohibits public employers from printing or publishing advertisements related to employment that specifically state any preference, limitation, or specification based on race, color, religion, national origin, sex, handicap, or age, except where the specified criteria constitutes a bona fide occupational qualification for employment.6
Conspiratorial Acts Prohibited
FEPA also makes it unlawful for a person, or for two or more persons, to conspire to engage in the five types of prohibited conduct or retaliate against a person that has opposed an unlawful practice. In addition to the enumerated prohibited types of conduct, retaliation against those who either oppose an alleged unlawful practice or participate in the proceedings related to the allegations of an unlawful practice are also prohibited. Likewise, it is unlawful for a person, or two or more persons, to abet, incite, compel, or coerce a person to engage in any of the acts or practices declared as unlawful by FEPA or to obstruct or prevent a person from complying with the provisions of the law or any order issued thereto. Additionally, It is also unlawful for persons to resist, prevent, impede, or interfere with the agents charged with enforcing the statute, unless there is a "good-faith belief" that such actions are unlawful or in excess of statutory authority. Finally, it is unlawful for any person to willfully initiate a frivolous or unwarranted charge of discrimination against the public employer7
Under FEPA, any public employee who believes that they have been a victim of discrimination and is employed by a department, board, bureau, commission, authority, or other agency within the State that employs 15 or more employees, each working 20 or more calendar weeks in a current or preceding calendar year, may file a written sworn complaint with the Administrator of the Commission on Equal Employment8 The Complaint must be filed within 180 days from the last alleged act of discrimination.9 The complaint should set out the facts upon which it is based in enough detail to enable the Administrator to identify the employer charged with the discrimination. After the complaint is received, the agency is required to investigate the allegations and serve a copy of the complaint upon the charged employer within 15 days of filing.10 No later than 90 days after the complaint is filed, and every 30 days thereafter, the Administrator must issue a status report summarizing the actions taken with respect to the complaint. The status reports must be issued until the complaint is resolved.11
The Commission on Equal Opportunity has significant investigatory powers. Those powers include the right to access all records and documents that are relevant to the complaint as well as even having the right to access premises, examine photographs, and copy evidence.12
Ultimately it is the job of the Administrator to determine whether the complaint establishes reasonable cause to believe that the responding employer actually engaged in an unlawful practice. After an investigation, if the Administrator ultimately determines that there is no reasonable cause to believe that the employer engaged in an unlawful practice, an order is issued dismissing the complaint. The complainant would have 10 days after receipt of that order to move for reconsideration. The Administrator would then have to respond to the reconsideration request within 15 days. To the extent that the Administrator again concludes that there is no reasonable cause to believe that the respondent public employer has engaged in an unlawful practice, the Administrator would issue a subsequent order dismissing the complaint. The complainant would be notified of the right to petition for review in the appropriate superior court as provided by Georgia law or to request a "right to sue" letter from the EEOC.13
Procedure in the Event of a "Cause" Finding/Referral To Special Master
The administrative procedure differs in the event that the Administrator finds cause to believe that an unlawful discriminatory practice actually existed. In those instances, the Administrator is required to eliminate the unlawful practice by conference, conciliation, and persuasion. This portion of the administrative effort normally results in a formal conciliation agreement. The conciliation agreement would customarily require the respondent employer to refrain from the unlawful practice in the future and make further provisions as may be agreed upon between the Administrator and the public respondent employer. The terms of the conciliation agreement are then placed into a final order, that in turn triggers a follow-up investigation after one year and at other times in the discretion of the Administrator's staff in order to ensure compliance.14 All conciliation efforts are confidential and privileged and are not made public by the Administrator or any agent of the Administrator without the written consent of the complainant and the public respondent employer.15 If the Administrator determines there is reasonable cause to believe that there has been unlawful activity but is unable to eliminate the discriminatory practice, the Administrator then refers the complainant to a Special Master. The Special Master would ultimately conduct a hearing and issue a final order.16 Unlike the EEOC, the Commission on Equal Opportunity does not bring suit against perceived public employer offenders on behalf of the complainant(s).17
Additional Procedural Considerations
Unless the complaint is dismissed or a conciliation agreement has been reached within 90 days after the complaint is filed, the Administrator is required to request that the Governor appoint a Special Master to an unresolved complaint to supervise discovery and ultimately to conduct a hearing. No later than 15 days after this deadline is reached, the Governor must select an appropriate Special Master from a list of attorneys promulgated by the Board of Commissioners of the Commission on Equal Opportunity. The Special Master has all the power and authority granted to agencies to conduct hearings. This power includes issuing subpoenas and rendering final orders under the Georgia Administrative Procedure Act.18
After appointment of the Special Master, the Administrator serves both the complainant and the respondent employer by registered or certified mail or "statutory overnight delivery" with written notice, including a copy of the complaint requiring the public respondent employer to answer the allegations contained in the Complaint at a hearing before the Special Master. The time and place for the hearing are also specified in the notice. This written notice should contain all general and specific allegations against the public respondent employer. The employer's answer must be served on the Special Master by registered or certified mail, not more than 20 working days after receipt of the notice of hearing. The Special Master may extend this filing period for an additional time not to exceed 10 working days. The answer must also be served on the complainant or the complainant's attorney.19
At any time after the Notice of Hearing is served, both parties are authorized to engage in discovery in the manner permitted by the Georgia Civil Practices Act.20 At the end of the discovery process, unless the case is resolved, the Special Master will conduct a hearing. The discovery period is the point during the dispute where the parties exchange information. The Georgia Civil Practice Act permits several different types of discovery, including written interrogatories, requests for the production of documents, and depositions. To most litigants, the discovery period is often the most time consuming and expensive part of the process. As would be the case if the dispute were before a judge, the Special Master may issue orders compelling, limiting, or imposing conditions upon discovery. Judicial enforcement of these orders is also available and may be obtained by either party in the same manner as final orders of the Administrator or a Special Master. This procedure is enacted by the filing in the superior court of the county of residence of the public respondent employer, a certified copy of the order, that will be made a judgment of the court without any further proceedings being necessary or available. Because of the expansive nature of the discovery process, local government respondents should treat all matters referred to a Special Master as they would any other litigation matter.
If the matter is not settled during the discovery phase, the matter will ultimately go to a hearing before the Special Master. All testimony taken during the hearing before the Special Master is to be under oath and recorded by a court reporter. Additionally, as prescribed by statute, the Special Master may hear arguments and consider further evidence related to relevant issues.21 A complainant in a Special Master hearing may either be represented by counsel at his or her own expense or in the absence of retained representation, will be represented by the Agency's staff.22 Additionally, the Special Master is authorized to award attorney's fees to a prevailing complainant for actual damages.23
While FEPA has been around for quite some time, this little known state discrimination statute could blindside a public employer if it is unaware of the substance and procedures contained therein. Knowledge regarding the existence and procedure of FEPA is becoming increasingly important to public employers. Knowledge regarding FEPA and the potential pitfalls of failing to fully comply are essential to avoiding possible legal exposure for your public entity and possible adverse publicity.
1. Ga. Code Ann. § 45-19-21(a)(1)
2. See Id.
3. Ga. Code Ann. § 45-19-21(a)(3)
4. Ga. Code Ann. § 45-19-22 (2002).
5. See G.B.I. v. Heard, 305 S.E.2d 670, 671 (Ga. Ct. App. 1983); Ga. Code ann. § 45-19-21 (2002) .
6. Ga. Code Ann. §§ 45-19-29; 45-19-30;
45-19-34 (2002 & Supp. 2007).
7. Ga. Code Ann. § 45-19-45 (2002).
8. Ga. Code Ann. § 45-19-22(5) (2002).
9. Ga. Code Ann. §§ 45-19-22(5);
10. Ga. Code Ann. §§ 45-19-27(10);
11. Ga. Code Ann. § 45-19-36(h)
12. Ga. Code Ann. § 45-19-27(10)
13. Ga. Code Ann. § 45-19-36(d)
14. Ga. Code Ann. 45-19-36(g) (2002).
15. Ga. Code ann. § 45-19-36(e)
16. Ga. Code Ann. §§ 45-19-36(f); 45-19-37
17. Ga. Code Ann. §
18. Ga. Code Ann. § 45-19-37 (2002).
19. Id. at (c).
20. Id. at (d).
21. Id. at (d).
22. Id. at (i).
23. Ga. Code Ann.§ 45-19-38(d) (2002 & Supp.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.