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New Provision of the Delaware Discrimination in Employment Act Strengthens Prohibition on Sexual Harassment

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September 12, 2018
By: James H. McMackin, III and Allyson B. DiRocco
Employment Law Alert

Beginning January 1, 2019, the Delaware Discrimination in Employment Act will include a provision prohibiting sexual harassment in the workplace. The amended Delaware statute will make it an unlawful employment practice for an employee to be subjected to conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature under the following conditions. 

  1. Submission to such conduct is made either implicitly or explicitly 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 the employee.
  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.

The statute provides for employer liability where a supervisor’s sexual harassment results in

  • a negative employment action of an employee;
  • an employer's knowledge of a non-supervisory employer’s harassment and failed to take corrective measures; or
  • a negative employment action is taken against an employee in retaliation for the employee engaging in protected activity. 

However, an employer has an affirmative defense if it proves that it exercised reasonable care to prevent and correct any harassment appropriately, and the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

The statute includes certain training requirements for employees and supervisors for employers with over 50 employees. 

Sexual harassment is already prohibited under federal law, Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees. The Delaware statute now mirrors federal law, and it applies to employers with 4 or more employees. The recent change in the law indicates the State of Delaware is sincere about taking a stance against and finding remedies for sexual harassment in the workplace. 

How can Morris James LLP assist you in complying with this new law?

  • We can help you prepare a sexual harassment policy for your employee handbook.
  • We offer training to employees and supervisors regarding sexual harassment prevention.
  • In the event a complaint of sexual harassment is brought forward, we can provide you advice for investigating and handling the complaint properly.

If you have questions or would like additional information, please contact Jim McMackin (jmcmackin@morrisjames.com; 302.888.5849) or Allyson DiRocco (adirocco@morrisjames.com; 302.888.5210).

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