Georgia legislators have introduced a bill, HB 1121, that provides for a new, state-level cause of action for sexual harassment against individual co-workers or supervisors and allows for the recovery of lost wages, benefits, compensatory damages, reasonable attorney’s fees, court costs and “other related expenses.” The bill has passed the Tort Reform Committee, and it next will go to the Rules Committee. If the bill is voted into law, it would: (1) allow plaintiffs to fast track sexual harassment claims by skipping the EEOC and going straight to state court, but still provide the ability to recoup attorney’s fees (a huge leverage point in negotiations); (2) lower the bar for liability on claims filed in state court; and (3) provide a safe harbor for plaintiffs who miss the 180 day EEOC deadline.
More specifically, this law would provide for liability against a co-worker/supervisor if they initiate non-consensual or unwelcome sexual advances, make commands for sexual favors, or other unwelcome verbal, visual or physical conduct of a sexual nature and either (1) the claimant’s rejection of the conduct or reporting of the conduct is used as a component of the basis for adverse employment actions or (2) the conduct has the purpose or effect of interfering with the claimant’s work performance or creating a hostile work environment. This seems to be a low bar for liability, as a claimant can allege that some unwelcome statement had the effect of interfering with his/her work performance when, in reality, the claimant is a poor performer. The bill also establishes an affirmative defense to liability if the contact is consensual or the conduct does not rise to the level of what a reasonable person would consider merely impolite.
A claimant would be able to bring an action under this statute within one year of the date of each incident or within 180 days from the exhaustion of all procedures provided for by an employer, whichever is later. Note that, as currently written, this law would not require the employee to file a charge with the EEOC before filing suit. This will give employees another shot at recovery if they blow the EEOC deadline to file a charge against the employer, and it could also be used to gather discovery from an employer before the EEOC finishes their investigation and the employee files suit under Title VII.
At the end of the day, while this bill provides for individual liability, it could open employers up to liability if their company policies and documents are produced in discovery, to the extent the policies are not robust or compliant with applicable laws. Employers also likely will receive subpoenas for records regarding the involved employees as well as all complaints of harassment and how those complaints were handled. Additionally, to the extent that an employer’s EPL policy provides coverage for the supervisors/coworkers described in the bill, this could increase costs for employers.
Although this bill is marketed as protecting workers, if passed, it also likely will have the effect of increasing costs for employers, even if they are not directly named in the lawsuit, and give plaintiffs’ attorneys potential advantages to get information on the employer prior to filing a Title VII lawsuit.