The City Council of Atlanta, Georgia recently passed an ordinance that amends its existing anti-discrimination law to include protection on the basis of "criminal history status" as well as "gender expression." The ordinance is effective immediately.

With regard to gender expression, the law simply amends existing law to include "gender expression" as an additional protected characteristic.

With respect to "criminal history" status protections, the law is worded to make it generally unlawful to "discriminate" based on the criminal history of applicants and employees. Practically speaking, however, the ordinance allows employment decisions based on criminal records as long as employers consider specified factors in such decisions. This is because 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 the evaluation of four factors: (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. These factors generally mirror guidance the U.S. Equal Employment Opportunity Commission issued in 2012 on consideration of criminal records in employment, and appear in various forms in other state and local "fair chance act" ordinances around the country.¹ In addition, the Atlanta ordinance expressly states that employers can still follow state or federal laws that create bars to employment in certain positions based on convictions or criminal violations.

Finally, the ordinance adds both "gender expression" and "criminal history status" to pre-existing prohibitions on "printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination" in employment. The ordinance does not provide any specific guidance on how a job advertisement might be construed to violate the ordinance when it addresses criminal history. Employers, therefore, may want to re-review job advertisements placed in Atlanta with an eye toward this presently ambiguous prohibition.

Under existing law in Atlanta, individuals who believe they are subject to employment discrimination in violation of the ordinance can file complaints with the Atlanta Human Relations Commission. Aside from ensuring compliance with the new Atlanta ordinance specifically, employers should be aware that criminal background screening continues to be a key focus area for administrative agencies and the plaintiffs' bar. Therefore, employers should consider reviewing background check policies and procedures to ensure compliance with federal, state and local laws in this ever-changing area.

Posted: November 11, 2022

¹ For more on recent developments on fair chance laws, see, e.g., Michael Gotzler and Casey Kaiser, Wisconsin Supreme Court Eases the Burden for Employers Defending Arrest and Conviction Record Discrimination Claims Under State Law, Littler Insight (Mar. 11, 2022); Stephen A. Fuchs and Rod M. Fliegel, New Enforcement Guidance Issued for New York City Fair Chance Act as Key Amendments Take Effect, Littler Insight (July 19, 2021); Rod M. Fliegel and Garrick Chan, The Dust Hasn't Settled Yet: Employers Must Continue to Be Thoughtful About Criminal Record Screening Policies, Littler Insight (July 6, 2021); Neil Alexander and Shaylon Lovell, New Arizona Law Eases Restrictions for Obtaining Occupational Licenses for Those With Criminal Histories, Littler ASAP (May 10, 2021).