The Delaware Discrimination in Employment Act has always provided a cause of action for sexual harassment under the umbrella of sex discrimination. However, new Delaware law, effective January 1, 2019, expressly addresses Delaware’s take on sexual harassment. In many ways, the new law is redundant with existing legal rights and responsibilities, thus simply creating a new section of the law to bring the same claim. In other ways, the new law at least arguably is different. In still other ways, the new law creates new obligations and new claims, which certainly require attention and action by employers.
Starting January 1, 2019, a claim will exist under the express provisions of the new Delaware law when an employee is subjected to conduct that includes 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 employee’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.
Under this new law, an employer is expressly responsible for sexual harassment of an employee when: (1) a supervisor’s sexual harassment results in a negative employment action of an employee; (2) 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 (3) 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.
For the second category of claims, it will be an affirmative defense that is stated specifically in the statute if the employer proves that: (a) the employer exercised reasonable care to prevent and correct any harassment promptly; and (b) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. Among other things, it is not clear what evidence will be sufficient to establish this “affirmative defense” or even what the impact of the “affirmative defense” will be, but it generally is worded to sound at least somewhat like the already-available affirmative defense commonly known as the “Faragher-Ellerth Defense” (although the necessary preventative or corrective opportunities generally include a specific and multi-channel complaint procedure, not just training, as perhaps this Delaware law implies).
For purposes of the harassment section of the law (but apparently not other sections of Delaware law), “supervisor” is broadly defined to mean 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.” This seems to make more employees “supervisor” under the Delaware law than the “empowered by the employer to take tangible employment actions against the victim” standard articulated in 2013 by the United States Supreme Court (for purposes of Title VII) in Vance v. Ball State University. It remains to be seen in what situations a non-management employee who nonetheless directs another employee’s daily activities will be deemed a supervisor.
Also starting January 1, 2019, any employer having four or more employees in Delaware (including individuals employed by an employer, including state employees, unpaid interns, applicants, joint employees and apprentices), must provide new employees with a new poster published by the Delaware Department of Labor, which can be viewed here. That poster needs to be distributed to existing employees by July 1, 2019. The distribution can be physical or electronic. An employer meeting this requirement expressly is not insulated from liability for sexual harassment; but nor does a failure to provide the notice “in and of itself result in liability . . . in any action alleging sexual harassment.” But it is the law just the same.
For employers having 50 or more employees in Delaware, two types of training are required. Both trainings must be “interactive” – though there is no guidance on what that means. Although the initial bill mandated that training last for two hours and it had vague qualification standards for the trainers, the law leaves such issues to the discretion of the employers – subject to dispute, of course.
The first type of training must be given to all employees: to new employees within 1 year of the commencement of employment and thereafter every 2 years; and to existing employees by January 1, 2020, and thereafter every 2 years. That training must include all of the following: (a) the illegality of sexual harassment; (b) the definition of sexual harassment using examples; (c) the legal remedies and complaint process available to the employee; (d) directions on how to contact the Department of Labor; (e) the legal prohibition against retaliation. It appears that at least most of this information is on the Department of Labor poster, with the “examples” of sexual harassment being from the Department of Labor and not spelled out in the statute.
The other type of training must be given to “supervisors” as follows: to new supervisors within one year of the commencement of employment as a supervisor, and thereafter every two years; and existing supervisors by January 1, 2020, and thereafter every two years. This training is “additional” to the above and must also include content regarding the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment and the legal prohibition against retaliation.
If an employer provided (legally-sufficient) training to employees or supervisors prior to January 1, 2019, that would satisfy the requirements under the new law; and no additional training would be required until January 1, 2020.
In counting 50 employees, employers do not count applicants or “independent contractors.” Nor are employers required to provide training to applicants, “independent contractors,” or employees employed less than 6 months continuously. Furthermore, employment agencies are the only employers required to count and provide training to employees placed by employment agency.
The Delaware Department of Labor has jurisdiction over all of the above. And an employer can be sued for violations. Furthermore, it may be more significant than it first appears that, for the first time, Delaware’s employment practices law now addresses “independent contractors.” For a discussion of that, see my article available here.
Any employer needing assistance with meeting these new obligations should feel free to contact a member of Connolly Gallagher’s employment law team. We offer assistance with drafting policies, conducting training, investigating claims, and mediating, arbitrating, and litigating disputes. Any employee feeling their newer or older rights have been violated should also feel free to contact us, as we are proud to have extensive experience advocating for both employers and employees.
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