Delaware Joins Growing List of States Passing Anti-Harassment Legislation

Delaware is the latest state to mandate that employers provide anti-harassment training to employees. Delaware joins New York, California, Connecticut, and Maine as states that require employers to provide such training. The new law amends the Delaware Discrimination in Employment Act (“DDEA”), and takes effect on January 1, 2019.

While the DDEA already prohibited discrimination based on sex, the recent amendments are devoted to prevention of sexual harassment in the workplace. The new law amends the DDEA to define sexual harassment and provides the same process used for Title VII violations with regard to exhaustion of administrative remedies prior to filing a private lawsuit.

The law also provides an affirmative defense to employers where: (1) the employer exercised reasonable care to prevent and correct harassment promptly; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This memorializes the long-recognized affirmative defense articulated by the United States Supreme Court in Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

Importantly, the new law requires that employers with fifty (50) or more employees in the state provide “interactive training and education to employees regarding the prevention of sexual harassment.” The new law does not specify the length of the training, although two (2) hours would be in line with what other states require. All existing employees must be trained by January 1, 2020. All new employees hired after January 1, 2019 must be trained within the first year of commencing employment. Training for all employees must be renewed every two (2) years. Only employees who are employed continuously for six (6) months or more are required to undergo training. The law does not require that employers train independent contractors or staffing agency employees. Employment or staffing agencies are required to count and provide training to their employees placed at client worksites.

The training must cover the following:

  • The illegality of sexual harassment;
  • The definition of sexual harassment using examples;
  • The legal remedies and complaint process available to the employee;
  • Directions regarding how to contact the Department of Labor; and
  • The legal prohibition on retaliation.

Additionally, supervisors also must receive training regarding the responsibilities of a supervisor to prevent and correct sexual harassment, as well as the prohibition on retaliating against an employee who has complained of harassment.

The new law also requires that the Department of Labor create an information sheet on sexual harassment, which employers will be required to distribute to its employees by July 1, 2019, or within six (6) months of commencement of employment for employees hired after July 1, 2019. The information sheet is required to address the same topics as the training. The information sheet must be distributed by employers with four (4) or more employees, thus covering many more employers and employees than the training requirement.

Employers with employees in Delaware should review existing training programs and schedules to ensure compliance with each of the above areas by January 1, 2019, and stay alert for similar legislation in other states or municipalities. Employers also should be sure to update anti-harassment policies, as well as protocols for responding to internal complaints and protections against retaliation, to ensure compliance with the new Delaware law and be able to take advantage of the affirmative defense.

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