Employment Discrimination

A recent article published by the Atlanta Journal Constitution reveals the alarming rate at which workplace discrimination and sexual harassment claims are dismissed by Georgia courts. According to research of cases filed in 2011 and 2012, close to 80 percent of cases in the Atlanta area were dismissed prior to trial, a steep increase from the already too-high nationwide dismissal rate of 70 percent. Most of these cases fail under Georgia’s summary judgment rules, which require a court to dismiss a case if the case lacks a genuine dispute of a material fact. This common problem plagues employment discrimination cases as they are notoriously difficult to prove.

Possible Reasons for Dismissal Rates in GA

There are a number of possible explanations for the high dismissal rates, namely the aforementioned issue of lack of evidence. In order to prevail in a Georgia employment discrimination case, your attorney must prove that you were terminated, demoted or otherwise treated negatively in the workplace based on one of the protected classes – which include race, national origin, sex, age, disability, pregnancy, color, religion or history of bankruptcy. As Georgia is an employment at-will state, an employer can rebut a discrimination claim by asserting the negative employment decision was made for any other non-discriminatory reason, or no reason at all. By working with an experienced discrimination attorney, you stand a better chance of gathering the evidence you need to advance your claim of discrimination, even if the claim itself proves to be an uphill battle.

While many proponents of anti-discrimination in the workplace criticize the Atlanta court system for its seemingly apathetic approach to discrimination lawsuits, attorneys familiar with employer defense herald the statistics as an appropriate measure of the sheer volume of frivolous lawsuits passing through the federal and state systems. However, it is difficult to conceive how a case can be truly deemed meritless prior to its being heard before a judge a jury.

Contact a reputable and experienced Georgia employment discrimination attorney today

We are dedicated to helping our clients seek justice against their discriminatory employers. We urge you not to be dissuaded by these statistics and encourage you to speak to one of our lawyers today. 

As an employee in the Georgia workforce, you are protected by certain state and federal laws prohibiting discrimination, harassment and wrongful termination. If you believe you are being subjected to unfair and unlawful treatment at your job, you have a number of legal options against your employer – all of which offer you additional protection against retaliation by your boss. If you decide to pursue a complaint, you will in most cases launch your initial complaint with the federal Equal Employment Opportunity Commission. From there, you can pursue a private lawsuit under Georgia and federal law with the help of an employment discrimination attorney.

Georgia’s Prohibitions Against Workplace Discrimination

To prevail in a discrimination action, you must belong to a protected category of people. The following lists the protected categories under Georgia law, which borrows many of its protections from federal laws. An employment discrimination suit may be based on any of the following:

• Age: It is unlawful to discriminate against any worker aged 40 years or older. Georgia laws impose possible misdemeanor criminal charges against any employer discriminating against workers between ages 40 and 70.

• Bankruptcy: An employer may not make a detrimental employment decision against any worker based on that worker’s decision to file bankruptcy.

• Disability: Disability laws are covered by the Americans With Disabilities Act (ADA) and the Georgia Equal Employment for People with Disabilities Code. An employer is required to make a reasonable accommodation for a disabled individual, unless the proposed accommodation would cause the employer extreme expense or difficulty.

• Equal Pay: An employer must pay men and women equally who are performing the same job.

• Pregnancy: Employers are forbidden from discriminating against a woman based on childbirth, pregnancy and related medical conditions.

• Race, Color, Religion, Sex or National Origin: Federal law has long-held it unlawful to discriminate against any worker based on these factors. These laws are based on the Civil Rights Act of 1964.

Harassment in the Workplace in Georgia

Harassment in the workplace is an intolerable violation of your rights as an employee. Federal and Georgia laws prohibit any unwelcome conduct “based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.” The conduct must be continuous in nature and severe enough to cause a reasonable person distress and discomfort. This type of conduct could include offensive jokes, emails, name calling, assaults, threats of violence, intimidation, ridicule or offensive objects and pictures.

Wrongful Termination in Georgia

If you find yourself out of a job and believe it is based on any of the above-listed characteristics, you may have a cause of action for wrongful termination. Keep in mind, however, that Georgia is an employment-at-will state. This means that an employer can fire you for any reason or no reason at all – provided the reason is not discriminatory in nature.

If you are experiencing wrongful conduct at your workplace, or were recently fired for possible discriminatory reasons, contact a GA employment discrimination attorney for consultation today.

The latest annual survey of American Workers and religion by the Tanenbaum Center for Religious Understanding has found that discrimination against Christians, the majority faith in the United States, is becoming increasingly widespread.

The report accompanying the survey implied that business managers have witnessed a rise in religion-related conflicts, including harassment and lack of special religious accommodations as the workforce has become more diverse.

The survey was conducted with more than 2000 adults and found that about a third reported either witnessing or experiencing religious bias.  Roughly another third report some form of failure to make special accommodation such as allowing religious clothing, beards, allowing time off on Sabbath and holidays as well as providing a venue for prayer and meditation.

Nearly half of non-Christian respondents reported witnessing or experiencing managements' failure to make accommodations at work.   A slight majority of all workers stated that Muslims face greater levels of discrimination, not just in comparison to other religious groups, but including gays and lesbians, racial minorities and women.

According to the Equal Employment Opportunity Commission (EEOC), since 2001, almost a quarter of all complaints it has investigated involve bias against Muslims, even though they comprise less than 2 percent of the United States population.   Further, discrimination is no longer dominated by issues surrounding dress codes, but has become more personal, in form of name calling and offensive jokes against Muslims.  While this discrimination against Muslims is not systematic in nature, it is prevalent between employees and at times between employees and supervisors.

Almost half of white Evangelical Christians have also suffered discrimination, with respondents finding themselves victims of rumors and gossip in the workplace.   Recent debates about the rights of gay, lesbians, bisexuals and transgender individuals have heightened conflict between such workers and devout Christians who may consider same-sex relations to be sinful.

 If you find yourself in a hostile work environment, because of your religion or any other improper  discrimination, contact our Georgia employment discrimination attorneys today for a consultation. 

What You Need to Know Regarding Employment Termination and Workplace Retaliation

Most workers with a family, a mortgage or other obligations prefer “permanent” employment to contract or temporary employment because of the security it provides. This is ironic, though, because employers can dismiss even “permanent” employees at any time and without cause. Employers’ right to fire employees transcends reasons pertaining to employee competency and employer finances and means that all of the following scenarios are legal in Georgia in most instances:

• Termination due to an issue as simple as a single dress code violation
• Termination because an owner or manager doesn’t “like” an employee
• Instant termination without any reason provided whatsoever

Though employees enjoy few rights regarding random, sudden and even vindictive termination, they do possess numerous and strong rights regarding employment discrimination. Specifically, employees in Georgia are protected from discrimination due to:

• Race, national origin and religion
• Disability
• Gender (including pregnancy status and issues relating to childbirth and pregnancy-related medical conditions)
• Age

Employees’ Legal Protections Don’t Just Apply to Termination

In regard to discrimination, limits to employers’ freedom don’t stop at employee firings. In regard to discrimination, Georgia’s employers must also follow strict laws regarding Employee promotions and demotions, employee pay, including overtime pay and employee classification, i.e. exempt vs. non exempt and retaliation.

This means that employees cannot fail to promote an individual due to his or her race, gender or other protected status. It also means that, for instance, employers must take care not to “group” individuals of similar race or ethnicity, then fail to pay them overtime (a common occurrence of this type of violation is the unequal treatment of immigrant restaurant and warehouse workers and other unskilled workers). Additionally, employers are forbidden to retaliate against individuals who report a potential instance of employment discrimination by withholding a promotion or demoting or terminating the individual.

What to Do If You Suspect You or Another Were the Victim of Employment Discrimination

By definition, employment discrimination involves loss. The loss of a job. The loss of advancement or status. The loss of pay. Federal and state employment laws are designed in part to assist the victims of employment discrimination to obtain a fair outcome as well as financial compensation for their loss. These can be provided in the form of:

• Job reinstatement (including fully reinstated seniority)
• Back pay for lost wages and benefits 
• Compensatory damages for out-of-pocket losses, future losses and mental anguish 
• Punitive damages if it can be demonstrated that an employer acted out of malice or reckless indifference
• Attorneys' fees, court costs and court fees

The first step in a successful employment discrimination lawsuit is the filing of the claim. A formal complaint, known as a “charge of discrimination,” must be filed with the U.S. Equal Employment Opportunity Commission. Once this is accomplished, the employee can file an employment discrimination lawsuit in court. The charge of discrimination must be filed within 180 days of the first instance of discrimination or retaliation. To learn more about your legal rights under federal and Georgia State employment laws, contact an experienced employment law attorney.

Federal and Georgia laws pertaining to employment discrimination are intended to be fair, intuitive and easy to understand. Yet, often, employers make mistakes when managing issues relating to employees’ illnesses, disabilities and religious rights, and even employees’ gender and race. Employees, too, often fail to understand their full rights when involved in employer/employee disputes regarding possible discrimination. The seriousness and frequency of employment discrimination in Georgia is evidenced by cases described by the American Civil Liberties Union’s website; it discusses recent cases in Georgia involving:

• Employees’ right to work while living with such diseases as AIDS and epilepsy
• Muslim employees’ right to wear a religious headscarf while at work
• Employers’ obligations when a customer makes a racially motivated request
• Laws protecting whites and males when an employer seeks to increase the diversity of its workforce
• Employees’ rights to religious conversion
• Pre-employment credit checks and racial profiling
• Veterans’ employment rights, including the rights of veterans suffering from post-traumatic stress disorder
• Workplace bullying combined with discrimination
• Employers’ failures to promote individuals with diabetes and other diseases
• Obesity, age, race- and gender-related activism and numerous other areas and issues

What Constitutes Employment Discrimination in Georgia?

If you are an employer or employee in the state of Georgia, it’s important to remain up to date and knowledgeable about your legal rights and obligations. A good start includes an understanding that, in our state, it’s illegal to discriminate on the basis of age, religion, disability, race, ethnicity, national origin and gender. Employment discrimination relating to these protected categories usually involves:

• Firing/termination
• Promotions, compensation and benefits
• Hiring practices
• Work environment
• Disability leave, maternity leave and retirement options
• Lay offs

In What Instances Is Discrimination Not Discrimination?

It may be helpful to understand discrimination that is perfectly legal. Though it may seem objectionable, employers in Georgia are perfectly within their rights to fire you, deny you a raise or promotion or reduce your pay based on:

• Your bankruptcy history (though some courts have ruled that, while current employers can discriminate against employees based on bankruptcy, potential employers cannot)
• Your political views
• Your appearance
• Nepotism (meaning favoring someone who is related to someone over someone who is not)
• Your credit history

Overlap between what is legal and what is not is common. For instance, an employer can discriminate against you because you are overweight, but may not be able to legally do so if your weight is linked to a disease. Your employer can discriminate against you because you dress badly, but your employer may be breaking the law if it has a dress code for women but not for men. And while you can be fired for your political views, if your political views are tied to working conditions or another issue involving employment law, your may be protected from discrimination. To be sure of your obligations and rights regarding employment law in Georgia, the best move is to contact an experienced employment law attorney. 

Employment law in Georgia and the U.S. as a whole is highly complex, so it’s understandable that employees most often have only a generalized understanding of their rights. Questions and comments such as  “That’s illegal”, “I wish they’d handled this differently” and “Can they do that?” are regularly heard on the job. Accurate and detailed information, though, is needed to fully understand whether one’s legal rights have truly been violated. 

One area of employment law that involves frequent legal violations is discrimination law. This is because U.S. law clearly states that employees must be treated equally and fairly in regard to their:

• Race
• Gender
• Age 
• Religion
• Disability
• National origin
• Personal bankruptcy history

Other classes of people that are protected from employment discrimination in many jurisdictions include gays and lesbians, the unemployed and people living with HIV/AIDS; people are also protected from discrimination due to marital status in many locales. 

What Employer Actions Are Barred and Mandated Via Anti-Discrimination Laws?

In many jurisdictions, employers can fire employees because of body piercings, hair styles, style of dress and countless other issues that may seem highly irrelevant to job performance. Employers cannot, however, treat employees differently just because they are a man or a woman, because they’re “too old”, because they’re from a specific country, because they’re black, white, Asian or another race, or because they’re disabled. They also can’t treat an employee differently because he or she has at any point in life filed for bankruptcy. Specific actions employers are barred from under anti-discrimination laws include:

• Firings/termination
• Failing to provide fair job and shift assignments
• Harassment
• Failing to compensate equally
• Limiting advancement opportunities
• Failing to pay overtime pay
• Failing to allow rest and lunch breaks

What Does a Typical Successful Discrimination Lawsuit Look Like?

When possible discrimination occurs in the workplace, it’s important stop guessing whether a legal violation occurred and to seek legal help. 

Discrimination can occur overtly or covertly. An overt action may involve an employer stating that an older individual is being demoted to “make way for young, fresh ideas”. Another example of overt discrimination is a demand for sexual favors in exchange for a promotion or continued employment. Covert discrimination could include long-term failure to promote a female or minority individual despite a demonstrable ability and stated desire to advance. 

Either way, it makes sense to contact an experienced employment law attorney for counsel. An employment law attorney can:

• Meet with you to discuss your concerns
• Condct an investigation to determine whether discrimination occurred
• Determine the extent of your loss
• Negotiate and litigate with your employer for the financial compensation you deserve and are legally owed

Without legal assistance, your employer will likely be unwilling to admit that discrimination occurred or to offer compensation. If your employer is willing to settle a claim without the involvement of an anti-discrimination attorney, it may be doing so to avoid a larger payout down the road. By working with an experienced and knowledgeable attorney, you can help ensure a fair outcome and, hopefully, the prevention of further discrimination. 

Poulan Pecan will pay $500 in civil penalties, according to the U.S. Department of Justice.  The fines are related to the Justice Department’s charge that Poulan Pecan illegally discriminated against work-authorized immigrant workers during the hiring and screening process.  As part of the settlement agreement, Poulan Pecan has also agreed to a year-long monitoring program by the Justice Department of its hiring and screening processes.

The Department of Justice claimed that the Georgia pecan supplier required immigrants to submit more documentation before they could be hired than it required of potential employees who were U.S. citizens.  According to the Justice Department, this policy and practice violates the anti-discrimination provisions of the Immigration and Nationality Act.

The Department of Justice began its investigation in 2012, after an individual called a Justice Department hotline with questions about the legality of the company’s actions when she applied for a job.  The Justice Department’s investigation revealed that the pecan-producing company asked immigrant applicants to supply specific work-authorization documents, as well as more authorization documents, that it asked of U.S. citizen applicants.

Poulan Pecan settled the case before the Justice Department filed a formal complaint.  Gregory Friel, a deputy assistant attorney general for the Civil Rights Division, said, “Individuals should be treated equally during the employment eligibility verification process.  This means not placing additional requirements, documentary or otherwise, on individuals based on their citizenship status.”

How to Hire Immigrants Without Violating Anti-Discrimination Laws

The Immigration and Naturalization Act covers all U.S. employers with three or more employees.  Here are some examples of hiring and screening practices that would violate the anti-discrimination provisions of the Immigration and Naturalization Act, according to the website of the Civil Rights Division of the Department of Justice:

• Refusing to accommodate an applicant’s disability when completing the I-9 (Employment Eligibility Verification Form)
• Refusing to accept valid and proper documentation in support of the I-9 form
• Refusing to allow an employee to start work because he or she doesn’t have documentation on the first day (three days are allowed)
• Refusing to hire a person because he or she is not a U.S. citizen, even though the person has work authorization
• Refusing to hire a person because he or she “sounds foreign”
• Having “citizen-only” and “green-card only” policies, unless they are required in your industry by law or regulation
• Refusing to hire an immigrant, such as a refugee, because his or her work authorization contains an expiration date
• Rejecting work authorization documents that appear on their face to be genuine
• Denying the applicant the choice of which acceptable documents to present to satisfy the requirements of the I-9
• Intimidating or retaliating against an employee or job applicant because that person has filed a discrimination charge, intends to file a charge, or has helped the Justice Department or Equal Employment Opportunity Commission with an investigation or other proceeding

In many instances, employment laws address the needs and rights of both employers and employees. Employment anti-discrimination laws, however, focus largely on the protection of employees’ right to a workplace that is free of harassment, retaliation and hostility, and of discrimination based on:

• Gender
• Race
• Age
• Disability
• Religion
• National origin
• A past bankruptcy

In many locales and in numerous situations (including employment by the federal government), employees are also legally protected from discrimination based on sexual orientation, marital status and political affiliation.

Two recent lawsuits can help employers understand their obligations and help employees understand their rights regarding employment discrimination. The first was covered in February 2013 by a Nevada newspaper and involved both discrimination and retaliation. (To read the article, click here).

The article notes that a school district’s female employee had successfully sued the district following workplace sexual harassment. Sexual harassment is illegal and the school district and the employee ended up settling the harassment case in 2003.

In 2006 the employee again sued the district, this time claiming that the district had failed to promote her because of her harassment claim of three years earlier. The employee is quoted as saying that the district “has made it clear that they are not going to promote me…I am being retaliated against." Retaliation following a discrimination lawsuit is illegal and, in this instance, too, the case settled out of court (for $300,000).

The “lesson” from this dual case? Employers who ignore anti-retaliation and anti-discrimination laws face the risk of costly litigation, verdicts and settlements. And employees can often successfully pursue the protection of their rights when they familiarize themselves with laws, regulations and acts such as:

• The Age Discrimination in Employment Act of 1967
• The Americans with Disabilities Act of 1990
• The Civil Rights Act of 1964
• The Civil Rights Act of 1991
• The Equal Pay Act of 1963
• The Rehabilitation Act of 1973
• The Bankruptcy Act
• The Civil Service Reform Act
• The Whistleblower Protection Act

In another case, occurring in 2010, a 54 year-old Radio Shack store manager was fired not long after a visiting company vice president had told him, after learning his age, that he might “have a year left” with the company.  The employee’s successor, who was 23 years old, mentioned that he’d been told that the company wanted “some younger ideas” at the store.

Not surprisingly, Radio Shack denied the discrimination charge and instead cited an instance in which a sum of money had been placed in a desk instead of a safe. Nonetheless, a jury found Radio Shack guilty of age discrimination and awarded the former store manager more than $1 million in lost wages, emotional distress and punitive damages. The lesson here? Employers must think twice before firing an employee due to notions that another employee will perform better simply because he or she is a different age, gender, race, etc. than another. Likewise, employees who know their rights can win significant compensation if they can prove they were the victim of an employment law violation. 

On November 7, the Fulton County (Georgia) Commission adopted an anti-bullying policy to protect county workers.  The policy applies to employees, department heads and elected or appointed officials, including part-time and temporary employees.

Fulton County Commissioner William Edwards (District 7) introduced the measure, stating that the county’s existing workplace violence protection policies did not adequately protect employees against bullying.

Fulton County’s new anti-bullying provision defines bullying as verbal abuse; threatening, humiliating or intimidating conduct; sabotage or work interference that prevents work completion or performance; or exploitation of a known psychological or physical vulnerability.

The policy requires employees to remove themselves from a bullying threat and report the behavior as soon as possible, either to a direct supervisor or to the county manager if the offender is the employee’s supervisor.  Under the new anti-bullying policy, supervisors must take action to protect the alleged victim, including separating the alleged victim from the alleged perpetrator and investigating the allegations.

The minimum penalty for a first offense is 5-day suspension without pay.  The second offense will result in the employee’s dismissal.

Should private employers follow Fulton County’s example?  Bullying is a common workplace occurrence, according to studies such as the 2010 Workplace Bullying Institute’s survey.  But does bullying do damage to the workforce and the bottom line?  Additional research suggests that it may do so.

Bullying at work may reduce employee productivity and employee morale.  It may also result in higher employee turnover and absenteeism.  Bullying may also result in increased medical insurance and workers’ compensation claims.

In 1998, the University of North Caroline studied 775 targets of workplace bullying:

• 28 percent spent work time avoiding the bully and the environment
• 22 percent decreased their work effort
• 12 percent changed jobs

Employers may want to review their workplace violence protection policies and consider adding an anti-bullying provision to their employee manuals.  If an employee is found to be a known bully and repeat offender, an anti-bullying provision may give the human resources department the necessary resources to pursue appropriate disciplinary action.  Adding a short anti-bullying section to the new employee training agenda helps create a workplace environment where all employees know that bullying is not tolerated.

To ensure that your anti-bullying policy complies with federal and state employment laws, ask an experienced business law and employment discrimination attorney to review the policy before you add the final version to your employee handbook.

Was it illegal workplace discrimination when a church fired an employee after she refused to take the church’s advice to cease living with her fiancé, to whom she was not yet married?

Jessica Atkinson, of Perry, Georgia, believes it is.  Ms. Atkinson filed an employment discrimination lawsuit against Friendship Baptist Church, a Warner Robins church, on Oct. 3, 2012.  She claims she was fired as the nursery school coordinator after church leaders questioned her live-in relationship with her fiancé.  According to the legal complaint, Ms. Atkinson was questioned in a meeting about why she was not married, as well as about her sexual relationship with her fiancé.

Ms. Atkinson said she told church officials she believed she was being discriminated against because of her religion, even though she is a member of the Baptist Church.  She also stated that she believes she was singled out by the church because she is female.

In previous, similar lawsuits, churches have claimed the “ministerial exception.”  The ministerial exception is an exception to federal laws prohibiting workplace discrimination that states that ministers of a church may be required to adhere to the tenets of the church.

Ms. Atkinson’s lawyer pointed out that she was not a pastor, but a nursery school teacher.  The attorney also stated that membership in the church was not a requirement of Ms. Atkinson’s job, and she was not ordained as a pastor of the church in order to hold the position, which she worked in since 2007 until she was terminated.  Ms. Atkinson’s lawsuit argues that, given these facts, the ministerial exception should not apply.

A recent example of a lawsuit in which the ministerial exception was successfully applied is Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, decided by the U.S. Supreme Court on January 11, 2012.  In that case, a former church teacher alleged disability discrimination when she was terminated after notifying the school she had been diagnosed with narcolepsy.  The school hired another teacher and suggested the teacher resign due to her medical condition.  The Supreme Court applied the ministerial exception, even though the plaintiff spent the majority of her time teaching secular rather than religious subjects.  The Supreme Court’s majority opinion pointed out that the former teacher had received the title "Minister of Religion, Commissioned" and instructed students in prayer.  The Supreme Court ruled that, given those facts, the ministerial exception should apply in that case.  Thus, the teacher’s termination was upheld.

The Equal Employment Opportunity Commission has settled its disability discrimination lawsuit against Garney Construction Company and Georgia Power Company.  In June 2012, the EEOC announced that Garney Construction and Georgia Power will pay $49,500 and provide additional training and guidance to employees and management regarding illegal disability discrimination.

The EEOC filed the Georgia disability discrimination lawsuit on behalf of Bryan Mimmovich, who applied for a job as a front-end loader with Garney Construction, a job he had held twice previously.  Mr. Mimmovich was diagnosed with epilepsy at age 12 and had been free of seizures for more than eight years while taking anti-seizure medication. 

Garney Construction’s contract with Georgia Power required job applicants to pass a physical examination – either the Department of Transportation (DOT) physical examination, an American Society of Mechanical Engineers (ASME) physical examination for crane operators, or another equivalent medical examination.  However, federal law does not require heavy equipment operators to pass a physical examination.  Because he was taking medication for epilepsy, Mr. Mimmovich automatically failed the DOT physical examination.  Garney Construction withdrew its job offer, stating that its contract with Georgia Power prevented it from hiring Mr. Mimmovich.

Mr. Mimmovich filed a complaint with the EEOC, which filed a lawsuit against Garney Construction and Georgia Power after failing to resolve the issue via mediation and conciliation efforts.  The EEOC’s lawsuit claimed that Garney Power illegally discriminated against Mr. Mimmovich because of his disability and that Georgia Power illegally interfered with Mr. Mimmovich’s employment relationship with Garney Construction by requiring Garney to refuse to hire Mr. Mimmovich when he failed the DOT physical examination instead of requiring Garney Construction to offer Mr. Mimmovich an individualized assessment of his ability to perform the job of front-end loader operator.

To settle the lawsuit, Garney Construction and Georgia Power will pay $49,500 to Mr. Mimmovich.  Both companies will also re-distribute anti-discrimination policies and schedule employee training regarding disability discrimination and pre-employment physicals.

Employers who use pre-employment physical examinations to screen potential employees should take care to ensure that these examinations do not illegally exclude applicants who are actually qualified to perform the job for which they are applying.  Employers should consider offering individual employment assessments to applicants with disabilities and should seek qualified legal advice to answer any questions that arise during the hiring process.