Georgia Legislature Expands Retaliation Protection for Local Government Employees

On April 4, 2022, the Georgia Legislature adopted HB 1390, thereby creating a cause of action for damages and other relief against certain local government employers who retaliate against employees because they complained of, reported, objected to, or engaged in certain other activities reflecting their opposition to sexual harassment. Governor Kemp is expected to sign HB 1390 into law. This article provides answers to frequently asked questions regarding HB 1390.

Does the HB 1390 apply to all local government employers like the Georgia Whistleblower Act?
No. While HB 1390 bears a close relationship to the Georgia Whistleblower Act (“GWA”), by its terms, it applies only to cities, counties, and consolidated governments.

What are some examples of local government employers who are covered by the Georgia Whistleblower Act but not by HB 1390?
Local government employers not covered by HB 1390 include development authorities, regional commissions, boards of education, public hospitals, public housing authorities, airport authorities, land banks, visitors bureaus, as well as commissions and authorities providing water, sewer, waste-water treatment, electricity, and other public utilities, and any other local governmental board, body, commission, or authority having its own corporate existence and overseen by its own governing authority. In addition, while not “local government employers” in the strict sense, sheriffs, superior court clerks, probate judges, and tax commissioners are also not covered by HB 1390.

Does HB 1390 create a cause of action for sexual harassment?
No. HB 1390 creates only a cause of action for retaliation. With this and other narrow exceptions—such as the Georgia Sex Discrimination in Employment Act, O.C.G.A. § 34-5-1, et seq., which applies to discriminatory wage practices—the Georgia Legislature continues to defer largely to the federal government’s regulation of the workplace and other aspects of the employment relationship.

What constitutes “sexual harassment” for purposes of HB 1390?
Although not authorizing a cause of action for sexual harassment, HB 1390 does define “sexual harassment” for purposes of determining whether an individual has engaged in protected activity. Under HB 1390, “sexual harassment” means unwelcome and offensive conduct of a sexual nature—such as sexual advances, requests for sexual favors, or other sexual or sex-based conduct—(1) where an individual’s submission to the conduct becomes a term or condition of his/her work, (2) where a personnel decision affecting an individual is made based on his/her submission to or rejection of the conduct, or (3) where the conduct creates an intimidating, hostile, or offensive work environment for the individual. While the precise verbiage differs in certain respects, this definition of “sexual harassment” largely tracks a common formulation of the definition applied by the U.S. Equal Employment Opportunity Commission and some federal courts under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-1, et seq. See 29 C.F.R. § 1604.11 (EEOC Regulations).

HB 1390’s definition of “sexual harassment” is comprised of both subjective and objective components. Subjectively, for conduct to constitute “sexual harassment,” the individual must personally regard it as unwelcome. Whether or not the individual tolerated or went along with the conduct is generally not determinative of whether he/she regarded it as unwelcome; rather, the ultimate question is whether the individual solicited or incited the conduct and, if not, whether he/she genuinely viewed it as undesirable or offensive.

The objective component requires that the conduct in question be viewed from the perspective of a reasonable person in the individual’s position considering all of the circumstances. Clearly, therefore, not all conduct of a sexual nature occurring in the workplace constitutes sexual harassment under HB 1390; indeed, by its own terms, when the conduct in question does not rise above the level of what a reasonable person would consider merely tactless, inconsiderate, overfamiliar, or impolite under the totality of the circumstances, the sexual harassment standard is not met regardless of how much the individual may have been personally offended by the conduct.

Since HB 1390 defines “sexual harassment,” does it matter how each city, county, or consolidated government defines the term in their personnel policies and procedures, employee handbooks, etc.?
The manner in which a covered employer defines “sexual harassment” in their personnel policies and procedures, employee handbooks, etc. is irrelevant for purposes of HB 1390. Importantly, however, it may not be irrelevant for purposes of the GWA. In this regard, if a covered employer has adopted an ordinance or resolution (or other “law, rule, or regulation”) defining and prohibiting sexual harassment, then an employee retaliated against for disclosing a violation of or non-compliance with that ordinance, resolution, etc., may have a claim for damages under the GWA independent of HB 1390. This is a critically important distinction between HB 1390 and the GWA, since most personnel policies and procedures, employee handbooks, etc. set a much lower standard for what constitutes prohibited “sexual harassment.”

By way of example, an occasional sexual comment, joke, innuendo or even sexual flirtation would, under most circumstances, fall short of meeting the HB 1390 or any federal definition of “sexual harassment.” On the other hand, such conduct normally would violate most personnel policies and procedures, employee handbooks, etc. due to the lower standards which are designed to prevent the continuation of such conduct and thereby stop it from evolving into actionable sexual harassment. Therefore, if such personnel policies and procedures, employee handbooks, etc., are set forth in or constitute ordinances, were adopted by resolution, or otherwise meet the definition of a “law, rule, or regulation,” then an employee’s disclosure of an alleged violation or non-compliance may trigger the protections of the GWA.

Does HB 1390 only provide a cause of action for persons who are “employees” of cities, counties, and consolidated governments?
No. The protections of HB 1390 extend to “[a]ny individual working for a county, municipality or consolidated government as an employee or in a similar capacity …. (Emphasis added.).” As such, certain individuals who do not meet the traditional definition of “employee” are also protected.

While the precise parameters of this covered group of non-employees are undefined, the requirement that they work in a similar capacity to traditional employees likely extends the group to volunteers, interns, temporary employees, community service workers, and workers providing services through a contractor pursuant to a public-private partnership with the city, county, or consolidated government.

What constitutes “retaliation” under HB 1390?
Under HB 1390, the types of actions that can constitute retaliation—if taken because of a covered individual’s protected conduct—includes discharge, suspension, demotion, or any other adverse action taken against a covered individual in the terms or conditions of the work relationship.

While the phrase, “adverse action … against … the terms and conditions of the work relationship” is not defined, the Georgia Court of Appeals has interpreted similar language under the GWA to mean employment action analogous to or of a similar kind or class as discharge, suspension, or demotion. Put another way, to support a retaliation claim, the adverse action must meet a threshold level of substantiality by resulting in a serious and material change in the terms, conditions, or privileges of the individual’s employment” or having a negative effect on the individual’s future employment opportunities.

What are the key differences between HB 1390 and the Georgia Whistleblower Act?
As noted above, the protections of HB 1390 extend to certain non-employees who are not expressly covered by the GWA, whereas the GWA applies to a broader group of public employers than does HB 1390. Perhaps the most significant differences between HB 1390 and the GWA, however, is in how the two laws define protected activity.

Under the GWA, the principal form of protected activity is the “disclosure” of a violation of or non-compliance with a law, rule, or regulation.” To be entitled to the GWA’s protections, however, the “disclosure” must be made by the employee to either a “supervisor” or to a “government agency”—both of which are defined terms under the GWA. Under HB 1390, protected activity is defined as (1) opposing sexual harassment, (2) reporting sexual harassment or filing a charge or complaint relating to sexual harassment, (3) instituting or causing to be instituted an investigation, proceeding, hearing, or action relating to sexual harassment, including assisting or participating in any such investigation, proceeding, hearing, or action, and (4) providing information, testifying, or planning to testify in any such investigation, proceeding, hearing, or action. Because some of this activity would not meet the definition of a “disclosure” under the GWA, HB 1390 protects a wider range of actions—provided, of course, that it relates to alleged sexual harassment.

If an employee is disciplined by a covered employer for engaging in sexual harassment, would he/she be able to assert a retaliation claim under HB 1390 if prior to being disciplined he/she participated in the investigation into the sexual harassment complaint?
HB 1390 expressly provides that it is not intended to prohibit any covered employer from taking appropriate corrective or remedial action—including disciplinary action—against any individual who it determines has engaged in or facilitated sexual harassment. In addition to the harasser, this would include—for example—a supervisor who failed to take appropriate steps upon receipt of a complaint or report of sexual harassment or an investigator who fails to conduct a prompt or objective investigation.

Since Title VII prohibits sexual harassment and constitutes a “law, rule, or regulation,” didn’t the Georgia Whistleblower Act already authorize a cause of action in favor of an employee retaliated against for complaining of, reporting, or otherwise objecting to sexual harassment?
Yes. Since the definition of “sexual harassment” that has evolved at the federal level likely constitutes a “law, rule, or regulation” within the meaning of the GWA, employees who disclose a violation of or non-compliance with Title VII’s prohibition of sexual harassment are already protected from retaliation under the GWA. As noted above, however, there are nevertheless key differences between HB 1390 and the GWA.

What is the statute of limitations for a retaliation claim under HB 1390?
Any individual wishing to pursue a claim for retaliation based on a violation of HB 1390 must do so by commencing a civil action under the GWA. Under the GWA, a civil action must be commenced within one year after the individual’s discovery of the retaliation or within three years after the retaliation, whichever is earlier.

What sort of relief is available under HB 1390?
As noted above, claims for retaliation asserted by covered individuals based on violations of HB 1390 must be brought under the GWA. Under the GWA, the court is authorized to award some or all of the following forms of relief: (1) an injunction restraining continued retaliation, (2) reinstatement of the employee to the same position held before the retaliation or to an equivalent position, (3) reinstatement of full fringe benefits and seniority rights, (4) back wages and benefits, (5) compensatory damages, and (6) attorney's fees, court costs, and expenses of litigation.

Under Title VII, retaliation claims are subject to caps on the amount of damages that can be awarded depending on the number of employees the employer has. Does HB 1390 have similar damages caps?
No. As noted above, retaliation claims based on violations of HB 1390 must be asserted under the GWA. The GWA imposes no caps or other limitations on compensatory damages that may be awarded, other than to state that they must be “allowable at law.”

Under Title VII, retaliation claims can only be asserted against employers having 15 or more employees. Does HB 1390 impose any similar limitations?
No. HB 1390 applies to all cities, counties, and consolidated governments in the State of Georgia, without regard for how many employees they have.

When will HB 1390 take effect?
Immediately upon being signed into law by the Governor.

This resource was prepared by the Public Sector Group of Elarbee, Thompson, Sapp & Wilson, LLP, a legal practice group specializing in the representation of state and local government clients throughout Georgia primarily in matters relating to labor and employment. It was designed to serve as an informational guide for the benefit of the firm’s public sector clients affected by this new legislation. It was prepared based on the most current information and legal analysis available; however, because certain issues relating to HB 1390 ultimately will have to be resolved by the courts, this resource should not be interpreted or relied upon, as legal advice. Local government employers are encouraged to consult with their attorneys as needed. Elarbee Thompson’s Public Sector Group is also available for consultation by contacting R. Read Gignilliat (404.582.8442 or gignilliat@elarbeethompson.com) or Sharon P. Morgan (404.582.8406 or morgan@elarbeethompson.com).