Local government employers in Georgia need to be aware of two new laws that will directly and indirectly affect their personnel practices going forward.
The Pregnant Workers Fairness Act
The first and more directly applicable law is the federal Pregnant Workers Fairness Act (PWFA), which took effect on June 27, 2023. Like many other federal employment civil rights statutes, the PWFA applies to private and public sector employers having 15 or more employees and is subject to the pre-litigation administrative procedures of the Equal Employment Opportunity Commission (EEOC). Although the EEOC has yet to issue regulations on the PWFA, official guidance and fact sheets for covered employers and employees are available on the EEOC’s website, as is the new “Know Your Rights” poster which covered employers should begin using immediately.
The PWFA expands upon the federal Pregnancy Discrimination Act (PDA) and other pre-existing laws protecting the employment rights of covered employees and applicants. It is analogous to the Americans with Disabilities Act (ADA) in that it requires covered employers (1) to engage in the interactive process and (2) to implement a reasonable accommodation(s) with respect to a covered employee or applicant experiencing known temporary limitations affecting her ability to perform essential job functions due to pregnancy, childbirth, or related medical conditions. Compliance with both steps is expressly required, as the PWFA prohibits employers from requiring that a covered employee accept an accommodation without first engaging in the interactive process.
Notably, while leave or time off has been recognized as a reasonable accommodation in some instances, the PWFA prohibits employers from requiring an employee to take leave if another accommodation would keep the employee actively working. Nevertheless, as under the ADA, the employer need not implement any accommodation that would impose an undue hardship—i.e., significant difficulty or expense—on its operations.
Like other federal equal employment opportunity laws, the PWFA prohibits retaliation against an employee or applicant who expresses opposition to unlawful discrimination under the PWFA or who participates in an EEOC or judicial proceeding relating to the PWFA. In the case of covered local government employers in Georgia, an employee’s oppositional and/or participatory activity may also qualify as a protected disclosure under the Georgia Whistleblower Act.
The Georgia Superior and State Court Appellate Practice Act
The second new law affecting Georgia local government employers is the Superior and State Court Appellate Practice Act (SSCAPA). This new law replaces the 100+ year old Certiorari Act as the means by which, among other things, local government employees may seek judicial review of certain personnel decisions; specifically, decisions rendered following evidentiary hearings presided over by one or more local government officials or appointees (including personnel, civil service, and merit boards) acting in a “quasi-judicial” capacity. The SSCAPA went into effect on July 1, 2023 and applies to all petitions for review filed on or after that date—even if the personnel decision to be reviewed was issued prior to that date.
The Certiorari Act was long due for an overhaul—it was a procedural relic from a bygone era riddled with non-intuitive, redundant, and arguably nonsensical requirements that were absurdly difficult to navigate and led to a disproportionately large number of dismissals on technical grounds. As such, the Certiorari Act—by effect if not by design—resulted in local government employers being insulated from many personnel-related judicial review proceedings. Because a key purpose of the SSCAPA is to simplify the judicial review process and prevent dismissals based on pleadings errors and other technicalities, local government employers who provide personnel-related evidentiary hearings and appeals for their employees should be prepared for an uptick in such proceedings.
Changes to the judicial review process under the SSCAPA are numerous and varied, but key among them is that the reviewing Court may reject the hearing officer or panel’s findings of fact—including credibility determinations—if, in its view, they are “clearly erroneous.” Under the prior law, credibility determinations were entitled to near complete deference, and the hearing officer or panel’s findings of fact were upheld if supported by “any evidence” in the record. Similarly, the personnel decision under review may be reversed or remanded for further proceedings if the reviewing Court determines it is not supported by “sufficient evidence.” The SSCAPA does not define the term “sufficient evidence,” but in other (non-criminal law) contexts it has been held to mean evidence satisfactory to a reasonable factfinder.
While the precise parameters of the SSCAPA will have to be determined by the courts, prudent local government employers will place greater emphasis on ensuring that the record created during personnel-related evidentiary hearings provides ample support for the personnel action taken.
This article was prepared by Elarbee Thompson’s Public Sector Practice Group for the benefit and use of the Georgia Municipal Association and its membership, as well as other state and local government clients. It was prepared based on the most current information and legal analysis available; however, because the EEOC is yet to issue regulations under the Pregnant Workers Fairness Act and because no court has had an opportunity to interpret or apply either the PWFA or the Georgia Superior and State Court Appellate Practice Act, the legal landscape relating to both laws is necessarily fluid. As such, this article is not intended, and should not be interpreted or relied upon, as legal advice. GMA members are encouraged to consult with their attorneys or outside counsel as needed. Elarbee Thompson’s Public Sector Group is also available for consultation by contacting R. Read Gignilliat (404.582.8442 / firstname.lastname@example.org) or Sharon P. Morgan (404.582.8406 / email@example.com). As always, GIRMA members may contact Elarbee Thompson’s Public Sector Group directly via the GIRMA Helpline (800.721.1998 / firstname.lastname@example.org).