On June 29, 2022, the City Council of Atlanta, Georgia, adopted a new ordinance that amends its existing anti-discrimination law―Chapter 94 - Human Relations of the City of Atlanta Municipal Code―to include protections on the basis of criminal history and gender expression. This new legislation, while overlapping substantially with existing federal anti-discrimination laws, affords coverage that is more expansive and thus carries greater potential liability for Atlanta private employers.

The ordinance is effective immediately and applies to all private employers who have 10 or more employees, making it important for Atlanta employers to understand its implications. Notably, the ordinance does not specify whether it only applies to employers who have a physical office or facility within the city limits, or if it also applies to employers physically located outside of the city but who do business within city limits.

The Ordinance Expands Status Protections

By way of the new ordinance, the city of Atlanta has created entirely new classifications, which prohibit private employers from discrimination against individuals for an even broader range of reasons than under existing federal anti-discrimination laws.

The ordinance amends existing law to include gender expression as an additional protected characteristic and renders it generally unlawful to discriminate based on the criminal history of applicants and employees.

In practical terms, the ordinance still allows employment decisions based on criminal records, as long as employers consider certain factors in such decisions, including whether the person committed the offense. The four factors that determine whether this exception applies are:

  1. Whether the person committed the offense;
  2. The nature and gravity of the offense;
  3. The amount of time since the offense; and
  4. The nature of the job.

The law provides an exclusion that an “adverse employment decision based on criminal history status shall not be considered a violation” of the law if the criminal history is “related to the position’s responsibilities,” as determined by evaluating the foregoing four factors. These factors largely mirror the 2012 guidance issued by the U.S. Equal Employment Opportunity Commission on consideration of criminal records in employment and other “ban the box” and “fair chance act” laws around the country.

The Atlanta ordinance also expressly provides that employers can still follow state or federal laws that bar employment in certain positions based on convictions or criminal violations.

The Ordinance Expands Preexisting Prohibitions on Preferential Treatment and Discrimination in Job Publications and Advertisements

The Atlanta ordinance further adds gender expression and criminal history status to preexisting prohibitions on “printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination” in employment. While the ordinance does not provide specific guidance on how a job advertisement might be considered in violation of the ordinance when it addresses criminal history, employers should consider carefully reviewing job advertisements placed in Atlanta with a critical eye toward this present ambiguity.

Liability Considerations

Notably, the new ordinance does not specify whether it only applies to employers who have a physical office or facility within the city limits, or whether it also applies to employers physically located outside of the city but who do business within city limits. Thus, in either case, private employers with 10 or more employees should, at a minimum, remain cognizant of the potential liability associated with any employment decision that may run afoul of these expanded protections afforded to employees and potential applicants in Atlanta.

Under existing Atlanta law, individuals who believe they are subject to employment discrimination in violation of the ordinance have the ability to either file a lawsuit in court or to file a complaint with the Atlanta Human Rights Commission.

Employers Should Take Heed and Review Existing Policies and Procedures

In light of the various anti-discrimination laws at the federal, state and local levels, and the potential interplay and/or preemption issues presented, employers in or doing business in Atlanta should consider reviewing their policies and procedures related to hiring, termination, anti-discrimination, anti-harassment and background checks, and consult with their legal counsel regarding any compliance questions or concerns.