New Delaware Law Boosts Worker Protections Against Sexual Harassment

Covered employers have a couple of months to understand how to comply and be ready by January 1, 2019.

Delaware joins some other states, which are strengthening their employment laws that protect against sexual harassment in the workplace. On August 29, 2018, Delaware Gov. John Carney agreed with legislators by signing the new law, which will take effect on January 1, 2019.

Rep. Helene Keeley, D-Wilmington, and Sen. Stephanie Hansen, D-Middletown, cosponsored Delaware House Bill 360. The original bill synopsis cited a U.S. Equal Employment Opportunity Commission or EEOC estimate that employees are not reporting three-quarters of workplace harassment across the country.

According to the bill text, its purpose is to give Delawareans a "safe and respectful workplace free of sexual harassment." The state expects employers to take complaints seriously and will hold them accountable. The Assembly expects that employers will "work to create a workplace where employees are safe and treated with dignity and respect."

Some of the main provisions, most of which will apply to employers with at least four employees, include:

  • Prohibits employers from retaliating against employees who file sexual harassment or other discrimination charges, cooperate in a sexual harassment investigation or act as a witness in a lawsuit or other proceeding
  • Requires that the Delaware Department of Labor write a sexual harassment information sheet that employers must give to employees
  • Mandates that employers having over 50 employees provide sexual harassment training to all employees every other year, including extra training for supervisors
  • Gives authority to the Labor Department to investigate sexual harassment allegations
  • Requires the Labor Department to reach out to employers to inform them about the new law's requirements
  • Expands those protected by anti-harassment provisions to also include job applicants, state employees, joint employees, interns, apprentices and employment-agency employees.

The bill defines sexual harassment as an unlawful employment practice if an employee is exposed to conduct including "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when" at least one of these is true:

  1. Submission is a "term or condition" of employment.
  2. Submission or rejection is the "basis for employment decisions."
  3. The conduct unreasonably interferes with "work performance" or creates an "intimidating, hostile, or offensive working environment."

An employer is liable for sexual harassment if any one of these occurs:

  1. A supervisor's harassment causes an employee's "negative employment action."
  2. The employer "knew or should have known" of an employee's (not a supervisor's) sexual harassment and failed to take corrective action.
  3. The employer retaliates against an employee as explained above.

Any Delaware employee facing harassment should talk to a lawyer immediately about potential legal remedies. Employers should take steps now to get legal advice about how to comply with the new law that takes effect soon.

Attorney Martin Haverly of Martin D. Haverly, Attorney at Law, in Wilmington represents both employees and employers in sexual harassment matters.