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Will Housing Status Discrimination Claims Become Cognizable in Delaware?

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In Labor & Employment Law | On May 20, 2016

This is the latest from the Delaware General Assembly as it pertains to employers:

SS1 for SB 134

(Townsend, Bolden, Lynn, Hall-Long, Henry, Marshall, McDowell; Reps. Baumbach, Keeley, Kowalko, Mitchell, Potter)

AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO HOMELESS PERSONS.

 

Synopsis:  An individual’s housing status should not be a basis for discrimination. This bill establishes a “Homeless Individual’s Bill of Rights” that provides rights to protections for individuals experiencing homelessness, including protections from discrimination while in public and while seeking access to housing, employment, and temporary shelter. This bill vests important investigatory and enforcement authority with the State’s Division of Human Relations and the State Human Relations Commission, similar to their roles with Delaware’s Equal Accommodations Law and Delaware’s Fair Housing Act.

 

URL:  http://www.legis.delaware.gov/LIS/lis148.nsf/vwLegislation/SS+1+for+SB+134/$file/legis.html?open

 

Actions History:

May 18, 2016 – Reported Out of Committee (COMMUNITY/COUNTY AFFAIRS) in Senate with 4 On Its Merits
May 10, 2016 – was introduced and adopted in lieu of SB 134

 

Editorial:

Many have been critical of the Delaware General Assembly piling protected classes into Delaware’s law, which historically (more than now) tracked federal law. There certainly is discussion that this new trend is potentially creating unintended consequences and creating at least debate about how claims should be prosecuted (e.g., the role of administrative agencies in such claims). While many bills proposing to do this have not become law, many have.  Several bills are currently in various phases of action in the law-making process. We attempt to post about these bills and list the posture under “Actions History.” Interested followers can find updates by following the hyperlinks provided to the bills.

This new bill breaks that trend by proposing law outside of the typical discrimination statute, placing it instead in Title 6. This placement makes sense for the most part because the bill targets many acts outside of the employment context. But employers should not allow this issue to pass their attention simply because it is not proposed for placement in Title 19.

In sum, as it pertains to employer/employee matters, this bill includes potential employer liability (for employment decision making). A claim can exist for this proposed form of discrimination. Complaints would be filed, within 90 days, with Division of Human Relations (not the Department of Labor as with other forms of employment discrimination). A finding adverse to an employer would require participation in a conciliation process. If a matter is not resolved at conciliation, a public hearing (with a panel) can be required where discovery is available and counsel may participate. If the panel finds the complaint was brought for an improper purpose, such as to harass or embarrass the respondent, reasonable attorneys’ fees, costs, and expenses to the respondent may be awarded.

If the panel finds a violation occurred, damages can include actual damages suffered by the complainant, including damages caused by humiliation and embarrassment, costs, expenses, reasonable attorneys’ fees, and injunctive or other equitable relief. Furthermore, the panel may assess a civil penalty against the respondent, to be paid to the Special Administration Fund. The Division can also pursue “appropriate temporary or preliminary relief” if deemed necessary. Appeal rights exist to the Delaware Superior Court.

For both employers and employees, we will continue to do our best to keep everyone informed.

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