United States: New Delaware Law Broadens Protections For Workers Against Sexual Harassment

On August 29, 2018, Delaware Governor John Carney signed into law House Bill 360, which significantly broadens protections for Delaware workers against sexual harassment. The new law: (1) expands the types of workers covered by the Delaware Discrimination in Employment Act's sexual harassment provisions to include state employees, unpaid interns, applicants, joint employees, apprentices and individuals who work for employment agencies; (2) defines sexual harassment as an unlawful employment practice; (3) requires mandatory training for employees and supervisors; and (4) affirms the Delaware Department of Labor's (DDOL) power to enforce these new provisions. Delaware's law comes amid a growing number of new state laws responding to the #MeToo movement seeking to address workplace sexual harassment issues.

The law applies to all Delaware employers with four or more employees within the state at the time of the alleged violation. It will go into effect on January 1, 2019.

Sexual Harassment Defined as an Unlawful Employment Practice

The law defines sexual harassment of an employee as an unlawful employment practice when the employee is subjected to unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct is used as the basis for employment decisions affecting an employee; or (3) such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment.

This definition arguably goes beyond the "severe or pervasive" standard found in federal law (Title VII of the Civil Rights Act of 1964, as amended). As a result, certain behavior may be deemed an unlawful employment practice under Delaware law that may not rise to the level of "severe or pervasive" under Title VII, thereby providing increased protections from sexual harassment for Delaware employees.

Notably, the Delaware law holds employers responsible for acts of sexual harassment between fellow employees where the employer knew or should have known of the conduct and failed to take appropriate corrective action. An employer is also responsible for a supervisor's sexual harassment of an employee when it results in a negative employment action of an employee. Echoing federal law, an employer is also liable if negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment or testifying in any proceeding or lawsuit about the sexual harassment of an employee.

The new Delaware law permits a limited affirmative defense for employers for one particular claim by an employee. When an employee alleges they were subjected to sexual harassment as defined above and when submission to or rejection of such conduct is used as the basis for employment decisions affecting the employee, the employer can assert an affirmative defense by proving: (1) the employer exercised reasonable care to prevent and correct any harassment promptly; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities.

Mandatory Anti-Sexual Harassment Training

With the passage of this new law, Delaware joins the growing number of states that have passed, or are considering, legislation mandating sexual harassment training in the workplace. The Delaware law requires employers with 50 or more employees in the state to provide interactive training and education to both employees and supervisors on specified topics and timelines.

The employer must provide training to new employees in Delaware within one year of the commencement of employment, and to existing employees within one year of the effective date of the Act. Thereafter, trainings for all employees must be conducted every two years. The training must include information regarding the illegality and definition of sexual harassment, with examples, the remedies and complaint process, how to contact the DDOL and prohibition of retaliation for making a complaint.

The employer must provide training to each supervisory employee in Delaware either within one year of the commencement of employment as a supervisor or within one year of the effective date of the Act. Thereafter, supervisory training must be conducted every two years. The supervisory training must include the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment and information on retaliation.

Delaware Department of Labor's Information Sheet

The law charges the DDOL with creating an information sheet on sexual harassment that employers must distribute to new employees and existing employees within six months of the effective date of the Act.

Delaware Department of Labor's Enforcement Authority and Remedies

Under the new law, the DDOL is empowered to investigate employment practices and make, revise and rescind rules or regulations to enforce the new law. In addition, the DDOL can commence civil litigation in Superior Court for violations of the law. The law gives the DDOL jurisdiction over all sexual harassment cases, which includes an administrative process. Aggrieved persons can file a charge of discrimination with the DDOL within 300 days of an alleged unlawful employment practice. In all cases where the DDOL has dismissed the charge, issued a no cause determination or upon the parties' failed conciliation efforts, the department may issue a Delaware Right to Sue Notice, allowing the charging party to file suit against the employer in state court.

Next Steps for Employers

In preparation for the effective date of January 1, 2019, covered Delaware employers should review policies and practices related to sexual harassment to ensure they reflect the expanded protections afforded by the new law and update policies and procedures, if necessary. Employers with 50 or more employees should develop interactive training for both supervisors and employees covering the topics specified by the law within the time frames required by the law. When the DDOL creates the information sheet, incorporate the distribution of the information sheet as part of the on-boarding process and identify a method to distribute the information sheet to existing employees.

For Further Information

If you have any questions about this Alert, please contact Caroline M. Austin, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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