Yesterday, Gov. John Carney (D) of Delaware signed into law H.B. 360, which provides more protections related to sexual harassment under the Delaware Discrimination in Employment Act.
The DDEA currently prohibits discrimination based on sex, but does not specifically address sexual harassment. The amendments, which will take effect January 1, 2019, create a new section devoted to sexual harassment.
Under the amendments, an employer of four or more employees can be liable for sexual harassment of its employee, unpaid intern, applicant, joint employee, or apprentice.
The employer will be liable when the harassment (1) “results in a negative employment action of an employee,” or (2) was by a non-supervisory employee but the employer “knew or should have known” of the harassment and “failed to take appropriate corrective measures.” (If the latter, the employer can avoid liability by proving that it “exercised reasonable care to prevent and correct any harassment promptly” and that the “employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.”
In addition, the employer will be liable for retaliation against an employee who engages in protected activity related to sexual harassment.
The definition of “sexual harassment” under H.B. 360 is identical to that under the regulations interpreting Title VII of the Civil Rights Act of 1964:
[U]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
submission to such conduct is made either explicitly or implicitly a term or condition of an employee’s employment;
submission to or rejection of such conduct is used as the basis for employment decisions affecting an employee; or
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.
Mandatory notices to employees
The new provisions direct the Delaware Department of Labor to create an information sheet on sexual harassment. Employers will be required to distribute the sheet to new employees when they begin employment, and to current employees within six months of the effective date (six months from January 1, 2019, or May 31, 2019). Failure to provide the notice will not “in and of itself result in liability” in a sexual harassment action. The notice requirement presumably applies not only to regular employees, but also to unpaid interns, joint employees, and apprentices.
Perhaps the most significant part of the new legislation is the requirement that employers of 50 or more employees provide sexual harassment training.
Non-supervisory employees. The training must be interactive, and must cover the following topics: (1) that sexual harassment is illegal; (2) the definition of sexual harassment, including examples; (3) “[t]he legal remedies and complaint process available to the employee”; (4) “[d]irections on how to contact the [state] Department [of Labor]”; and (5) retaliation. The training must be given to new employees within a year of the start of employment, and every two years afterward. Training for current employees must be given within a year of the effective date of the legislation (or no later than December 31, 2019), and every two years afterward.
Supervisors. In addition to the subjects that must be covered with non-supervisory employees, employers must provide interactive training to supervisors that addresses (1) “the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment”; and (2) retaliation. The training must be given to new supervisors within a year of their taking a supervisory position and every two years afterward. Existing supervisors must receive training within one year of the effective date of the legislation (or no later than December 31, 2019), and every two years afterward.
“Supervisor” under the amendments means much more than front line supervisors, and includes any “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.”
Employers who provide (or provided) training that meets the requirements of the law before January 1, 2019, will not be required to provide any additional training until January 1, 2020.
In determining whether an employer meets the 50-employee requirement for the training provisions, applicants and independent contractors are not counted. Employers are not required to provide sexual harassment training to applicants, independent contractors, or employees who have been employed for less than six continuous months. Employees of employment agencies do not have to be trained by the “client” employers. The agencies are responsible for conducting their training.
Providing the training required by the amendments “does not insulate an employer from liability for sexual harassment.”
The Delaware Department of Labor will enforce the law. An individual who believes the law has been violated can file a charge within 300 days of the alleged act. The DDOL will investigate and make a determination of “reasonable cause” or “no reasonable cause” to believe that a violation occurred. If “no reasonable cause” is found, the DDOL will issue a notice of right to sue to the charging party. The Agency can also conduct its own investigation and file suit based on alleged violations.