HB306: HB306 Labor and industrial relations; cause of action for workplace harassment and retaliation; provide

25 LC 52 0680 House Bill 306 By: Representatives Miller of the 62nd, Willis of the 55th, Crawford of the 89th, McClain of the 109th, Holcomb of the 101st, and others A BILL TO BE ENTITLED AN ACT To amend Title 34 of the Official Code of Georgia Annotated, relating to labor and industrial1 relations, so as to provide for a cause of action for workplace harassment and retaliation; to2 provide for definitions; to provide for certain facts to be det ermined at trial by a jury; to3 provide for an affirmative defense; to provide for a statute of limitations; to provide for relief4 and damages; to provide for related matters; to provide for an effective date; to repeal5 conflicting laws; and for other purposes.6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7 SECTION 1.8 Title 34 of the Official Code of Georgia Annotated, relating to labor and industrial relations,9 is amended by revising Chapter 5A, relating to sexual harassment in government workplaces,10 as follows:11 "CHAPTER 5A12 34-5A-1.13 As used in this chapter, the term:14 H. B. 306 - 1 - 25 LC 52 0680 (1) 'Adverse employment action' means a material change in the terms or conditions of15 employment that puts a claimant in a worse position. Such term includes termination,16 suspension, demotion, and transfer or reassignment to an inferi or or objectively less17 desirable position, duties, or work schedule.18 (2) 'Anti-harassment policy' means a set of guidelines and procedures that an employer19 implements to prevent and address workplace harassment and retaliation by supervisors,20 co-workers, and third parties.21 (3) 'Claimant' means an individual who works for salary, wages, or other remuneration22 for an employer and brings a claim under this chapter.23 (4) 'Co-worker' means an individual other than the claimant wh o works or provides24 services to the same employer as the claimant but who is not a supervisor for such25 employer.26 (5) 'Employer' means an entity or its agent engaged in busines s that pays ten or more27 individuals who work for salary, wages, or other remuneration in this state. Such term28 shall not include the federal government, state government, any political subdivision of29 this state, or a quasi-governmental entity.30 (6) 'Protected activity' means an action that is protected by law. Such term includes31 when a claimant has:32 (A) Opposed workplace harassment;33 (B) Made a formal complaint regarding workplace harassment to the employer, made34 a report or a charge or filed a complaint related to workplace harassment with the35 United States Equal Employment Opportunity Commission, or filed a lawsuit related36 to workplace harassment in a court of law;37 (C) Instituted, caused to be instituted, assisted in, or participated in any manner in an38 investigation, proceeding, hearing, or action related to workplace harassment which is39 undertaken by the employer, the United States Equal Employment Opportunity40 Commission, or a court of law; or41 H. B. 306 - 2 - 25 LC 52 0680 (D) Provided information, has testified, or is known by the employer to be planning to42 testify in any manner in any su ch investigation, proceeding, he aring, or action43 undertaken by the employer, the United States Equal Employment Opportunity44 Commission, or a court of law.45 (7) 'Protected characteristic' means an individual's race, col or, religion, sex, national46 origin, age, disability, or genetic information.47 (8) 'Retaliation' means an adverse employment action taken aga inst a claimant as48 punishment for the claimant engaging in a protected activity or advocating for49 employment protections provided under this chapter.50 (9) 'Sexual harassment' 'sexual harassment' means sexual advances, requests for sexual51 favors, sexual or sex-based sex based conduct, or any other unwelcome and offensive52 conduct of a sexual nature where:53 (A) Submission to the conduct involved is made, implicitly or explicitly, a term or54 condition of work;55 (B) Submission to or rejection of the conduct is used as the b asis for a personnel56 decision affecting the individual's work; or57 (C) Such conduct creates an intimidating, hostile, or offensiv e work environment, ;58 provided, however, that an intimidating, hostile, or offensive work environment is not59 created when the conduct does not rise above the level of what a reasonable person60 would consider merely tactless, inconsiderate, overfamiliar, or otherwise impolite,61 particularly with regard to the totality of the circumstances.62 (10) 'Supervisor' means any individual who has authority to un dertake or recommend63 tangible employment decisions affecting a claimant or to direct the claimant's work64 activities.65 (11) 'Workplace' means any work related setting, including, but not limited to, online or66 mobile communications by a claimant, co-worker, or supervisor.67 H. B. 306 - 3 - 25 LC 52 0680 (12) 'Workplace harassment' means unwelcome and offensive cond uct based on a68 protected characteristic, including sexual harassment, at a cla imant's workplace that69 negatively impacts a claimant's employment. Such term includes conduct at a claimant's70 workplace where:71 (A) Submission to the conduct involved is made, implicitly or explicitly, a term or72 condition of work;73 (B) Submission to or rejection of the conduct is used as the b asis for a personnel74 decision affecting the individual's work; or75 (C) Such conduct creates an intimidating, hostile, or abusive work environment;76 provided, however, that an intimidating, hostile, or abusive wo rk environment is not77 created when the conduct does not rise above the level of what a reasonable person78 would consider merely tactless, inconsiderate, overfamiliar, or otherwise impolite,79 particularly with regard to the totality of the circumstances.80 34-5A-2.81 (a) Any individual working for a county, municipality, or consolidated government as an82 employee or in a similar capacity shall have a cause of action for retaliation against the83 county, municipality, or consolidated government if such county , municipality, or84 consolidated government has discharged, suspended, demoted, or taken any other a n85 adverse employment action against the individual in the terms or conditions of the work86 relationship because the individual has:87 (1) Opposed sexual harassment;88 (2) Made a report or a charge, or filed any complaint related to sexual harassment;89 (3) Instituted, or caused to be instituted, assisted in, or participated in any manner in any90 investigation, proceeding, hearing, or action related to sexual harassment; or91 H. B. 306 - 4 - 25 LC 52 0680 (4) Provided information, has testified, or is known by the county, municipality, or92 consolidated government to be planning to testify in any manner in any such93 investigation, proceeding, hearing, or action related to sexual harassment.94 (b) Such individual may institute such a civil action in accordance with the provisions of95 paragraph (1) of subsection (e) of Code Section 45-1-4, and a court may order any or all96 of the relief described in paragraph (2) of subsection (e) and subsection (f) of Code97 Section 45-1-4.98 (c) Nothing in this Code section shall be interpreted to prohibit the county, municipality,99 or consolidated government from taking appropriate corrective or remedial action against100 any individual who it determines has engaged in or facilitated sexual harassment.101 (d) A county, municipality, or consolidated government may mit igate liability for102 retaliation if it shows that, acting in good faith, it exercised reasonable care to prevent and103 promptly address sexual harassment as provided in Code Section 34-5A-4.104 (e) All facts necessary to establish liability for a cause of action as provided in105 subsection (a) of this Code section shall be determined at trial by a jury.106 34-5A-3.107 (a) A claimant aggrieved by workplace harassment shall have a cause of action for108 workplace harassment against:109 (1) A supervisor, co-worker, or third party when such individual engaged in workplace110 harassment of the claimant;111 (2) An employer when a co-worker or third party engaged in workplace harassment of112 the claimant and the employer's negligence exposed the claimant t o a r i s k o f s u c h113 harassment; and114 (3) An employer when a supervisor engaged in workplace harassment of claimant.115 H. B. 306 - 5 - 25 LC 52 0680 (b) An employer may mitigate liability for workplace harassment if it shows that, acting116 in good faith, it exercised reasonable care to prevent and prom ptly address workplace117 harassment as provided in Code Section 34-5A-4.118 (c) All facts necessary to establish liability for a cause of action as provided in this Code119 section shall be determined at trial by a jury.120 34-5A-4.121 (a) An employer may mitigate liability for workplace harassment or retaliation when the122 employer shows that, acting in good faith, it exercised reasona ble care to prevent and123 promptly address workplace harassment and retaliation.124 (b) An employer shall be deemed to have exercised reasonable c are to prevent and125 promptly address workplace harassment and retaliation when it has:126 (1) Adopted a written anti-harassment policy that establishes policies and procedures127 concerning unlawful discrimination and harassment. Such policy shall contain at least:128 (A) A statement that any workplace harassment will not be tolerated and that discipline129 will be enforced against individuals engaging in workplace harassment;130 (B) A statement that retaliation against those who disclose, r eport, participate in an131 investigation of, or otherwise challenge or oppose workplace harassment is prohibited;132 (C) A statement that the employer will promptly and impartially investigate complaints133 alleging workplace harassment or retaliation;134 (D) Definitions of protected activity, protected characteristi cs, retaliation, sexual135 harassment, and workplace harassment;136 (E) A description of the process for filing internal complaint s alleging workplace137 harassment or retaliation;138 (F) The contact information of the person to whom complaints a lleging workplace139 harassment or retaliation should be made and an alternative cha nnel, if the alleged140 harasser or retaliator is such person; and141 H. B. 306 - 6 - 25 LC 52 0680 (G) A statement that the employer may take remedial measures during the investigation142 of an allegation of workplace harassment or retaliation and in the event of verified143 workplace harassment or retaliation;144 (2) Disseminated the anti-harassment policy to all employees, including the claimant;145 (3) Followed policies and procedures for workplace harassment and retaliation contained146 in the anti-harassment policy and as required by law;147 (4) Trained supervisors on steps to prevent and correct workpl ace harassment and148 retaliation when it is observed and steps to take when workplace harassment or retaliation149 is reported to a supervisor;150 (5) Promptly disciplined individuals who engaged in workplace harassment or retaliation151 to deter future harassment and retaliation;152 (6) Promptly disciplined supervisors who knowingly allowed workplace harassment or153 retaliation to occur or continue; and154 (7) Stopped workplace harassment or retaliation that the employer knew or should have155 known occurred.156 (c) All facts necessary to establish an affirmative defense against liability as provided in157 this Code section shall be determined at trial by a jury.158 34-5A-5.159 (a) Except as provided for in Code Section 34-5A-2, a claimant shall have a cause of160 action for retaliation against a supervisor or employer when such supervisor or employer161 took an adverse employment action against the claimant because such claimant engaged162 in a protected activity.163 (b) An employer may mitigate liability for retaliation if it shows that, acting in good faith,164 it exercised reasonable care to prevent and promptly address retaliation as provided in Code165 Section 34-5A-4.166 H. B. 306 - 7 - 25 LC 52 0680 (c) All facts necessary to establish liability for a cause of action as provided in167 subsection (a) of this Code section shall be determined at trial by a jury.168 34-5A-6.169 (a) Any claimant's action for workplace harassment as provided for in Code170 Section 34-5A-3 shall commence within two years from the date o f the most recent171 incident.172 (b) Any claimant's action for retaliation as provided for in C ode Section 34-5A-2173 or 34-5A-5 shall commence within one year after discovering the retaliation or within three174 years after the retaliation, whichever is earlier.175 34-5A-7.176 (a) In an action brought pursuant to this chapter, the court may order any relief it deems177 appropriate to make the claimant whole, including, but not limited to, compensation for lost178 wages, front pay or reinstatement, benefits, other remuneration, compensatory damages,179 punitive damages, reasonable attorney and witness fees, court c osts, and other related180 expenses. A court may grant as relief a permanent or temporary injunction, temporary181 restraining order, or other order, including an order enjoining the defendant from engaging182 in such practice or ordering such continuing remedial action as may be appropriate.183 (b) Punitive damages shall not be available if a jury determin es that the employer has184 substantively complied with Code Section 35-5A-4.185 (c) The provisions of this chapter shall be construed as being in addition to, and in no way186 denying, altering, or amending, any other civil or criminal rights or remedies at law or in187 equity or notice requirements provided under any other provision of law."188 H. B. 306 - 8 - 25 LC 52 0680 SECTION 2.189 This Act shall become effective upon its approval by the Governor or upon its becoming law190 without such approval.191 SECTION 3.192 All laws and parts of laws in conflict with this Act are repealed.193 H. B. 306 - 9 -