The state of Delaware enacted a sexual harassment prevention law that includes mandates for businesses. The law, effective Jan. 1, 2019, generally covers employers with four or more employees and addresses mandatory training, notice requirements, and employer responsibilities. Covered employers with four or more employees must distribute an anti-sexual harassment information sheet to all employees; employers with 50 or more employees must also deliver interactive anti-sexual harassment training to their employees.
This is significant for this small state because, according to the state of Delaware’s website, more than one million companies are incorporated in Delaware, including 50 percent of all U.S. publicly traded companies and 60 percent of the Fortune 500.
Delaware joins New York, California, Connecticut, and Maine, as well as New York City and Washington, D.C., in enacting a law to mandate sexual harassment prevention training for certain private employers.
Discrimination based on sex has been illegal in Delaware workplaces for more than 20 years. However, the new law – HB 360 – now specifically addresses sexual harassment and clearly defines what constitutes sexual harassment of an employee, something the existing Delaware Discrimination in Employment Act (DDEA) did not do.
Law expands groups covered under workplace sexual harassment
HB 360 clarifies the definition of employee and expands the type of workers covered previously under the DDEA. Employees are defined as individuals employed by an employer and now includes state employees, job applicants, joint employees, and unpaid interns.
The new law defines sexual harassment in the workplace as conduct that includes unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of employee’s employment
- Submission to or rejection of such conduct is used as the basis of employment for employment decisions affecting an employee
- Such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive work environment
What employers need to know
Results of a U.S. Equal Employment Opportunity Commission (EEOC) study of workplace sexual harassment in fiscal year 2018 revealed that charges of sexual harassment in the United States rose 13.6 percent from 2017. The spike in cases in FY18 marked the first significant increase in a decade that saw reported cases drop steadily from FY09.
Delaware employers can be held responsible for sexual harassment of an employee by a supervisor or by another employee if the employer knew or should have known about an incident but failed to take the appropriate corrective action. Similar to federal law, employers can be responsible if a negative employment action (e.g., termination) of an employee results from an incident of sexual harassment by a supervisor, as well as if any form of retaliation is taken against an employee for filing a discrimination charge.
Employers do have some protection, an affirmative defense, under the law for harassment by a non-supervisor if they prove they exercised reasonable care in preventing and correcting promptly any harassment, and if the employee failed to take advantage of any opportunities provided by the employer to prevent and correct any incident of sexual harassment.
Employer requirements under the law
As of Jan. 1, 2019, employers with four or more employees within the state must distribute the Department of Labor’s information sheet on sexual harassment available on the state of Delaware’s official website to new employees at the commencement of employment, and to all existing employees by July 1, 2019. The notice explains what constitutes sexual harassment, including examples, and provides instructions on how to file a complaint with the Department of Labor.
Larger employers – those with 50 or more employees in the state – have additional compliance responsibilities, including a requirement to provide interactive training on sexual harassment prevention for employees and supervisors. The training for existing employees must be completed by Dec. 31, 2019, and to all new employees within one year of their start date in their position. Supervisors must receive training within one year of starting their job as supervisor. Training must be conducted every two years for employees and supervisors.
The new law does not specify a mandated length of time for training but does indicate the following areas must be included and covered in full in training sessions:
- The definition of sexual harassment, including the use of examples
- Availability of legal action and the complaint process for employees
- That sexual harassment is illegal
- Directions on how to contact the Department of Labor
- Legal prohibition against retaliation
The interactive training for supervisors also must include their specific responsibilities and prohibitions on retaliation regarding sexual harassment.
Delaware employers should make sure they have reviewed the new law and its provisions, distributed the information sheet, and updated their sexual harassment prevention policies to ensure they are aligned with the new law. Additionally, they should update any training modules to stay compliant with the interactive requirements and schedule sessions to meet the compliance dates for training.