Earlier this year, Delaware enacted Amendments to the Delaware Discrimination in Employment Act, which are aimed at broadening protections for employees against sexual harassment and impose new notice, distribution, and training requirements on certain employers. The Amendments also create potential employer liability for the sexual harassment of its employees and for retaliating against employees for engaging in protected reporting activities.
The Amendments apply to any person employing four or more employees within Delaware at the time of any alleged sexual harassment violation, including state agencies and labor organizations.
Eligible employees covered by the Amendments are individuals employed by an employer, including state employees, unpaid interns, applicants, joint employees and apprentices.
Under the Amendments, “sexual harassment” is an unlawful employment practice when an employee is subjected to conduct that includes (i) unwelcomed sexual advances, (ii) requests for sexual favors, (iii) other verbal or physical conduct of a sexual nature, or retribution on the basis of rejection of such advances when:
- Such conduct unreasonably interferes with an individual’s work performance or the endurance of such conduct becomes a condition of continued employment; or
- Such conduct creates an intimidating, hostile or offensive work environment.
Potential Liability and Anti-Retaliation
An employer is responsible for sexual harassment of an employee when:
- A supervisor’s sexual harassment results in a “negative employment action,” which is broadly defined to include any action taken by a supervisor that negatively impacts the employment status of an employee;
- The employer knew or should have known of the non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or
- A 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.
Similar to federal law’s “Faragher-Ellerth Defense,” in any action against an employer where it is alleged that the employer knew or should have known of the non-supervisory employee’s sexual harassment, the employer can defend the claim by proving that (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 provided by the employer.
The Delaware Department of Labor has created and distributed an “information sheet,” which provides notice to employees of their right to be free from sexual harassment in the workplace. Beginning on January 1, 2019, every employer with four or more employees must distribute the information sheet to all new employees immediately upon the commencement of their employment. Additionally, all existing employees must receive the information sheet from their employer within six months of the effective date – by July 1, 2019. Distribution of the information sheet may be done either physically or electronically.
Additionally, this notice requirement applies not only to regular employees, but also to unpaid interns, applicants, joint employees and apprentices.
The most significant requirement imposed by the Amendments is that all employers having 50 or more employees in Delaware must provide its employees with mandatory interactive sexual harassment prevention training and education. For the purposes of determining whether an employer is required to provide this training and education, employers need not count applicants or independent contractors when considering if it has 50 or more employees.
The sexual harassment training must be interactive and discuss the following topics:
- The illegality of sexual harassment;
- The definition of “sexual harassment” in conjunction with the use of examples;
- The legal remedies and complaint process (both internal and external) available to employees;
- Instructions as to how to contact the Delaware Department of Labor to file a complaint; and
- The prohibition against retaliation.
The employer must administer the interactive training to all new non-supervisory employees within one year of the commencement of employment and every two years thereafter. All existing employees must receive the interactive training within one year of the effective date – by December 31, 2019 – and every two years thereafter.
All of the employer’s supervisors located in Delaware must also receive additional interactive training and education in addition to the training administered to non-supervisory employees. For purposes of the Amendments, a “supervisor” is defined as “an individual that is empowered by the employer to take an action to change the employment status of an employee or who directs an employee’s daily work activities.” The additional interactive training and education for supervisors must discuss (1) the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment and (2) the prohibition against retaliation. The employer must administer the interactive training to all new supervisors within one year of the commencement of employment as a supervisor and every two years thereafter. All existing supervisors must receive the interactive training within one year of the effective date – by December 31, 2019 – and every two years thereafter.
Employers with between four and 49 employees should review their anti-harassment employment policies and revise them as necessary to comply with the Amendments. Additionally, such employers should distribute the sexual harassment information sheet notice to all existing employees by July 1, 2019, and make a concerted effort to provide the information sheet notice to all newly hired employees immediately.
Additionally, employers with 50 or more employees should review and update as necessary their training and education materials to ensure that they meet the sexual harassment prevention training requirements of the Amendments. These employers must administer the interactive sexual harassment prevention training to all existing employees by December 31, 2019.