One of the fundamental values we share as Americans is the belief that, if your rights are violated, you’re entitled to your day in court to prove it. But the law is tricky — sometimes government agencies get special immunity from laws that we all agree should be followed. Even worse, this immunity sometimes protects bad actors who work for these government agencies. In fact, some laws designed to protect employees are passed without effective enforcement mechanisms, like a jury trial, or court decisions gut them to the degree that they are meaningless. This undermines public confidence in the law as a whole, because what’s the point of a law if no one follows it?
This is now the case for state employees in Georgia who have disabilities and can no longer rely on the protection of the landmark federal law called the Americans with Disabilities Act (ADA). Signed into law by President George H.W. Bush in 1990, this important law forbids employment discrimination against disabled employees and requires employers to make reasonable accommodations for them. The ADA was a revolution in equal opportunity, giving people with disabilities the right to earn the dignity that comes from gainful employment. And it brought us closer to the ideal of a more just and inclusive society.
But last month, in the case of Augusta Judicial Circuit Office of the Public Defender v. Hodge-Peets, the Georgia Attorney General’s Office persuaded the Court of Appeals to overturn an important court precedent that allowed state employees to enforce the ADA in court. This decision also prevents state employees from pursuing age discrimination claims. One of the judges in the Hodge-Peets case urged the General Assembly to evaluate the consequences of this decision. But the General Assembly did not, just as it has failed to pass a law like other states have allowing employees to present discrimination claims to a jury in court. After all, state employees previously pursued disability discrimination claims under the ADA only because there is no state laws protecting employees from such discrimination.
As an employment attorney, I have represented hundreds of workers in Georgia who were discriminated against. I will now have to explain to public employees that if they are ever discriminated against because of their age or disability, they will have no way to present claims for their damages to a jury. I have one client who worked for a state agency and was denied reasonable accommodation. Now she will not be able to present her claim for disability discrimination to a jury. The state’s strategy in seeking to deprive its workers of legal protections is not limited to workers with disabilities. They also argued that because of Hodge-Peets, it is immune from age discrimination lawsuits too. In another case in Macon, an older worker in the IT department at a state college alleged that he was called “old man,” subjected to jokes about his age and then laid off and replaced with a less qualified man in his 20s. This could be a strong age discrimination claim that I would be eager to litigate. But now, the state succeeded in getting this case dismissed too because of Hodge-Peets.
Credit: handout
Credit: handout
I served as an assistant attorney general in another state with its own versions of the ADA and other laws protecting against workplace discrimination. That Attorney General’s Office enforced those laws on behalf of citizens. Why doesn’t Georgia want to do the same? The state might say that Georgia does have a law forbidding employment discrimination in state agencies. But that law, the Georgia Fair Employment Practices Act, requires employees to present their claims to an administrative agency run by appointees of the governor. Though its decisions can be reviewed by a court, the law does not allow for jury trials or the recovery of emotional distress damages. It’s bad enough if a person can’t win compensation for the emotional suffering of being belittled or cast out of a good job because they are disabled. But it also affects whether such people can get any justice at all because lawyers are less able and willing to take these cases as a result as they will generally yield little recovery.
It’s a complete mystery why Georgia does not want to enforce the rights of residents with disabilities to be free from discrimination. At the very least, it should allow state employees the right to bring discrimination lawsuits on their own in court, as all other citizens. And this isn’t rocket science — most states have laws that mirror federal laws such as the ADA, Title VII of the Civil Rights Act of 1964, and the ADEA, and allow employees to sue for damages in state courts. This includes states as diverse as Arkansas, Florida, Michigan, Missouri, New Jersey, Tennessee and Washington.
Georgia should pass an amendment to the Fair Employment Practices Act to bring it in line with the laws of most other states and create an individual right to sue an employer — even the state — for disability discrimination or age discrimination. The General Assembly should do this for no other reason than that it’s the right thing to do by Georgians to protect their rights. And it could even save the state money on the state budget to allow private enforcement of these rights. But the state should also do this to send the message to current and future employers that Georgia is a state that takes individual rights seriously enough to let people have their day in court.
Brian Sutherland of Beal Sutherland Berlin & Brown was lead counsel at the U.S. Supreme Court for Gerald Bostock, the plaintiff in the landmark case of Bostock v. Clayton County, Georgia, which banned workplace discrimination against LGBTQ people nationwide.
