The City of Atlanta has adopted a new ordinance which will have significant consequences on most private employers within Atlanta. The City Council passed sweeping new anti-discrimination legislation which overlaps in many ways with existing federal anti-discrimination laws, such at Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act. However, the Atlanta ordinance is much more expansive and greatly increases coverage and thus potential liability, for private employers by creating several new protected classes of employees and job applicants. These new anti-discrimination laws are now in effect in the City of Atlanta and private employers should take precaution to ensure compliance with these far-reaching laws.
I. Covered Employers and Protected Classes
The Atlanta ordinance applies to all private employers who have ten (10) or more employees. Many federal anti-discrimination statutes, such as Title VII, apply only to employers of fifteen or more employees, so the Atlanta legislation will have the effect of broadening the scope of employers subject to anti-discrimination laws. The ordinance does not specify whether it only applies to employers who have a physical office or facility within the City limits, or whether it might apply to employers physically located outside of the City, but who do business within City limits.
Many of the classes protected by the Atlanta ordinance are familiar and are also covered by federal employment laws, but the City has now created several entirely new classifications which have not heretofore been considered as protected classes anywhere in the State of Georgia.
The ordinance prohibits discrimination by covered private employers because of an individual’s, or the perception of an individual’s, race, color, creed, religion, sex, domestic relationship status, parental status, familial status, sexual orientation, national origin, gender identity, age, disability, or the use of a trained dog guide by a blind, deaf or otherwise physically disabled person. As you can see, private employers are now prohibited from discrimination against individuals for a broader range of reasons than under existing federal anti-discrimination laws. Some of the noteworthy new protected classes are defined more specifically by the City Council as follows:
- Domestic Relationship Status
- Means the presence or absence of a domestic partnership or marital relationship and includes the status of married, separated, divorced, engaged, widowed, single, co-habitating, or domestic partnership, without regard for whether such relationship is between persons of the same or opposite sex.
- One practical effect of this new regulation is that many nepotism policies may now be illegal. If you have a policy which prohibits employment of an employee’s spouse, you may be violating the law.
- Parental Status
- Means being a parent, step-parent, adoptive parent, guardian, foster parent or custodian of a minor child or children.
- Some employers may not want to have someone with kids in certain positions (e.g. too much overtime, too much traveling, etc.). Now, employers cannot deny employment or promotional opportunities to someone because they are a parent.
- Familial Status
- Means the state of being a person who is domiciled with one or more minor children, with the permission of the parent or person with legal custody of such minor child or children.
- Sexual Orientation
- Means male or female heterosexuality, bi-sexuality or homosexuality.
- Some may argue that this law requires employers to change their benefit plans to include domestic partners, even if the partner is homosexual.
- Gender Identity
- Means self-perception as a male or female and shall include a person’s identity, expression, physical characteristics, whether or not traditionally associated with one’s biological sex or one’s sex at birth, including transsexual, transvestite and transgendered and including a person’s attitudes, preferences, beliefs and practices pertaining thereto, including but not limited to assumption of male or female identity by appearance or medical treatment.
- This term is not defined in the regulations.
- By not defining the class of age-protected persons, the statute now has a much broader meaning. Unlike federal law which limits the protected, covered class to persons 40 and over, here there is no limit on age. In other words, an employer cannot refuse to hire a 21-year old on the grounds that the individual is too young.
II. Enforcement Procedures and Remedies
The new regulations allow private citizens to either: (a) file a lawsuit in court; or (b) file a complaint with the City’s Human Rights Commission.
Aggrieved individuals are given a private cause of action under the Atlanta ordinance and can file a lawsuit in “any court of competent jurisdiction”? Unlike many federal statutes which require a person to first pursue administrative charges through the Equal Employment Opportunity Commission before filing a private lawsuit, no such requirement is present here and private individuals may file suit directly in court at any time within two years of the occurrence of the alleged act of discrimination or unlawful practice. The ordinance provides wide-ranging damages to victorious plaintiffs, including, injunctive relief, compensatory damages, punitive damages, attorney’s fees and costs. Unlike many federal employment statutes which cap the amount of potential damages based upon the size of the employer, there is no such similar cap here. In other words, employers in the City of Atlanta now face unlimited and uncertain exposure to aggrieved applicants and employees who claim discrimination in employment.
In addition to filing a lawsuit, or instead of filing suit if so desired, an individual can file a charge of discrimination with the City of Atlanta’s Human Relations Commission. That Commission is given broad investigative powers, including the power to interview witnesses and subpoena employers’ documents and records. Hearings can be held and the Commission has the power to enter orders finding an employer in violation of the anti-discrimination ordinance. When that is done, the Commission may order an employer to pay the expenses of the investigation, including payment of attorney’s fees. Additionally, the Commission may order the revocation of a company’s licenses, including any alcoholic beverage license, any professional licenses, or even the company’s business license.
III. Impact of Ordinances and Compliance
The City’s new ordinance is almost certain to face legal challenge. Critics believe the legislation will not survive a legal challenge and that the laws violate state and federal constitutional provisions. However, employers should not simply assume that the ordinance will be thrown out by a court. Unless and until those ordinances should somehow be repealed or overturned, they are the “law of the land” in the City of Atlanta. Thus, employers should review these ordinances in light of their own employment practices and policies in order to ensure compliance. This may require review of company handbooks, benefit eligibility, recruitment and promotion procedures and training of managers and supervisors about these regulations. If you would like a copy of the new ordinance or have any questions, please contact Matthew W. Clarke at 404-815-3767.