HB 306: Labor and industrial relations; cause of action for workplace harassment and retaliation; provide

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 industrial relations, so as to provide for a cause of action for workplace harassment and retaliation; to provide for definitions; to provide for certain facts to be determined at trial by a jury; to provide for an affirmative defense; to provide for a statute of limitations; to provide for relief and damages; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 34 of the Official Code of Georgia Annotated, relating to labor and industrial relations, is amended by revising Chapter 5A, relating to sexual harassment in government workplaces, as follows:

"CHAPTER 5A

34-5A-1.

As used in this chapter, the term:

(1) 'Adverse employment action' means a material change in the terms or conditions of employment that puts a claimant in a worse position. Such term includes termination, suspension, demotion, and transfer or reassignment to an inferior or objectively less desirable position, duties, or work schedule.

(2) 'Anti-harassment policy' means a set of guidelines and procedures that an employer implements to prevent and address workplace harassment and retaliation by supervisors, co-workers, and third parties.

(3) 'Claimant' means an individual who works for salary, wages, or other remuneration for an employer and brings a claim under this chapter.

(4) 'Co-worker' means an individual other than the claimant who works or provides services to the same employer as the claimant but who is not a supervisor for such employer.

(5) 'Employer' means an entity or its agent engaged in business that pays ten or more individuals who work for salary, wages, or other remuneration in this state. Such term shall not include the federal government, state government, any political subdivision of this state, or a quasi-governmental entity.

(6) 'Protected activity' means an action that is protected by law. Such term includes when a claimant has:

(A) Opposed workplace harassment;

(B) Made a formal complaint regarding workplace harassment to the employer, made a report or a charge or filed a complaint related to workplace harassment with the United States Equal Employment Opportunity Commission, or filed a lawsuit related to workplace harassment in a court of law;

(C) Instituted, caused to be instituted, assisted in, or participated in any manner in an investigation, proceeding, hearing, or action related to workplace harassment which is undertaken by the employer, the United States Equal Employment Opportunity Commission, or a court of law; or

(D) Provided information, has testified, or is known by the employer to be planning to testify in any manner in any such investigation, proceeding, hearing, or action undertaken by the employer, the United States Equal Employment Opportunity Commission, or a court of law.

(7) 'Protected characteristic' means an individual's race, color, religion, sex, national origin, age, disability, or genetic information.

(8) 'Retaliation' means an adverse employment action taken against a claimant as punishment for the claimant engaging in a protected activity or advocating for employment protections provided under this chapter.

(9) 'Sexual harassment' 'sexual harassment' means sexual advances, requests for sexual favors, sexual or sex-based sex based conduct, or any other unwelcome and offensive conduct of a sexual nature where:

(A) Submission to the conduct involved is made, implicitly or explicitly, a term or condition of work;

(B) Submission to or rejection of the conduct is used as the basis for a personnel decision affecting the individual's work; or

(C) Such conduct creates an intimidating, hostile, or offensive work environment,; provided, however, that an intimidating, hostile, or offensive work environment is not created when the conduct does not rise above the level of what a reasonable person would consider merely tactless, inconsiderate, overfamiliar, or otherwise impolite, particularly with regard to the totality of the circumstances.

(10) 'Supervisor' means any individual who has authority to undertake or recommend tangible employment decisions affecting a claimant or to direct the claimant's work activities.

(11) 'Workplace' means any work related setting, including, but not limited to, online or mobile communications by a claimant, co-worker, or supervisor.

(12) 'Workplace harassment' means unwelcome and offensive conduct based on a protected characteristic, including sexual harassment, at a claimant's workplace that negatively impacts a claimant's employment. Such term includes conduct at a claimant's workplace where:

(A) Submission to the conduct involved is made, implicitly or explicitly, a term or condition of work;

(B) Submission to or rejection of the conduct is used as the basis for a personnel decision affecting the individual's work; or

(C) Such conduct creates an intimidating, hostile, or abusive work environment; provided, however, that an intimidating, hostile, or abusive work environment is not created when the conduct does not rise above the level of what a reasonable person would consider merely tactless, inconsiderate, overfamiliar, or otherwise impolite, particularly with regard to the totality of the circumstances.

34-5A-2.

(a) Any individual working for a county, municipality, or consolidated government as an employee or in a similar capacity shall have a cause of action for retaliation against the county, municipality, or consolidated government if such county, municipality, or consolidated government has discharged, suspended, demoted, or taken any other an adverse employment action against the individual in the terms or conditions of the work relationship because the individual has:

(1) Opposed sexual harassment;

(2) Made a report or a charge, or filed any complaint related to sexual harassment;

(3) Instituted, or caused to be instituted, assisted in, or participated in any manner in any investigation, proceeding, hearing, or action related to sexual harassment; or

(4) Provided information, has testified, or is known by the county, municipality, or consolidated government to be planning to testify in any manner in any such investigation, proceeding, hearing, or action related to sexual harassment.

(b) Such individual may institute such a civil action in accordance with the provisions of paragraph (1) of subsection (e) of Code Section 45-1-4, and a court may order any or all of the relief described in paragraph (2) of subsection (e) and subsection (f) of Code Section 45-1-4.

(c) Nothing in this Code section shall be interpreted to prohibit the county, municipality, or consolidated government from taking appropriate corrective or remedial action against any individual who it determines has engaged in or facilitated sexual harassment.

(d) A county, municipality, or consolidated government may mitigate liability for retaliation if it shows that, acting in good faith, it exercised reasonable care to prevent and promptly address sexual harassment as provided in Code Section 34-5A-4.

(e) All facts necessary to establish liability for a cause of action as provided in subsection (a) of this Code section shall be determined at trial by a jury.

34-5A-3.

(a) A claimant aggrieved by workplace harassment shall have a cause of action for workplace harassment against:

(1) A supervisor, co-worker, or third party when such individual engaged in workplace harassment of the claimant;

(2) An employer when a co-worker or third party engaged in workplace harassment of the claimant and the employer's negligence exposed the claimant to a risk of such harassment; and

(3) An employer when a supervisor engaged in workplace harassment of claimant.

(b) An employer may mitigate liability for workplace harassment if it shows that, acting in good faith, it exercised reasonable care to prevent and promptly address workplace harassment as provided in Code Section 34-5A-4.

(c) All facts necessary to establish liability for a cause of action as provided in this Code section shall be determined at trial by a jury.

34-5A-4.

(a) An employer may mitigate liability for workplace harassment or retaliation when the employer shows that, acting in good faith, it exercised reasonable care to prevent and promptly address workplace harassment and retaliation.

(b) An employer shall be deemed to have exercised reasonable care to prevent and promptly address workplace harassment and retaliation when it has:

(1) Adopted a written anti-harassment policy that establishes policies and procedures concerning unlawful discrimination and harassment. Such policy shall contain at least:

(A) A statement that any workplace harassment will not be tolerated and that discipline will be enforced against individuals engaging in workplace harassment;

(B) A statement that retaliation against those who disclose, report, participate in an investigation of, or otherwise challenge or oppose workplace harassment is prohibited;

(C) A statement that the employer will promptly and impartially investigate complaints alleging workplace harassment or retaliation;

(D) Definitions of protected activity, protected characteristics, retaliation, sexual harassment, and workplace harassment;

(E) A description of the process for filing internal complaints alleging workplace harassment or retaliation;

(F) The contact information of the person to whom complaints alleging workplace harassment or retaliation should be made and an alternative channel, if the alleged harasser or retaliator is such person; and

(G) A statement that the employer may take remedial measures during the investigation of an allegation of workplace harassment or retaliation and in the event of verified workplace harassment or retaliation;

(2) Disseminated the anti-harassment policy to all employees, including the claimant;

(3) Followed policies and procedures for workplace harassment and retaliation contained in the anti-harassment policy and as required by law;

(4) Trained supervisors on steps to prevent and correct workplace harassment and retaliation when it is observed and steps to take when workplace harassment or retaliation is reported to a supervisor;

(5) Promptly disciplined individuals who engaged in workplace harassment or retaliation to deter future harassment and retaliation;

(6) Promptly disciplined supervisors who knowingly allowed workplace harassment or retaliation to occur or continue; and

(7) Stopped workplace harassment or retaliation that the employer knew or should have known occurred.

(c) All facts necessary to establish an affirmative defense against liability as provided in this Code section shall be determined at trial by a jury.

34-5A-5.

(a) Except as provided for in Code Section 34-5A-2, a claimant shall have a cause of action for retaliation against a supervisor or employer when such supervisor or employer took an adverse employment action against the claimant because such claimant engaged in a protected activity.

(b) An employer may mitigate liability for retaliation if it shows that, acting in good faith, it exercised reasonable care to prevent and promptly address retaliation as provided in Code Section 34-5A-4.

(c) All facts necessary to establish liability for a cause of action as provided in subsection (a) of this Code section shall be determined at trial by a jury.

34-5A-6.

(a) Any claimant's action for workplace harassment as provided for in Code Section 34-5A-3 shall commence within two years from the date of the most recent incident.

(b) Any claimant's action for retaliation as provided for in Code Section 34-5A-2 or 34-5A-5 shall commence within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.

34-5A-7.

(a) In an action brought pursuant to this chapter, the court may order any relief it deems appropriate to make the claimant whole, including, but not limited to, compensation for lost wages, front pay or reinstatement, benefits, other remuneration, compensatory damages, punitive damages, reasonable attorney and witness fees, court costs, and other related expenses. A court may grant as relief a permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in such practice or ordering such continuing remedial action as may be appropriate.

(b) Punitive damages shall not be available if a jury determines that the employer has substantively complied with Code Section 35-5A-4.

(c) The provisions of this chapter shall be construed as being in addition to, and in no way denying, altering, or amending, any other civil or criminal rights or remedies at law or in equity or notice requirements provided under any other provision of law."

SECTION 2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3.

All laws and parts of laws in conflict with this Act are repealed.