Filing a Workplace Harassment Complaint in Delaware

Ninety days, measured from the later of two notices. Section 714(b) requires the action to be brought within ninety days of receipt of the Delaware Right to Sue Notice or within ninety days of receipt of a federal Right to Sue Notice, whichever is later. That drafting protects someone who has filed both a state charge and an EEOC charge, because a Delaware notice arriving first does not start a clock that runs out while the federal agency is still working. Record the date each notice was received, not the date on the letter.

You may well. Section 710(7) defines employer as any person employing four or more employees within the State at the time of the alleged violation, including the State and its political subdivisions, boards, departments, commissions and school districts. Two features matter. The count is limited to employees within Delaware, so a large national company with three people here is outside the act, and the count is taken at the time of the violation rather than averaged over twenty calendar weeks as federal law requires. Federal Title VII needs fifteen employees, so a five person Delaware employer can face a state claim and no federal one.

The sexual harassment section says so expressly. Section 711A(b)(4) includes state employees, unpaid interns, applicants, joint employees and apprentices within the employees it protects, and Section 711A(b)(6) defines the covered employer for those claims as a person employing four or more employees within the State at the time of the alleged violation, including the State, the General Assembly, state agencies and labor organizations. Note that the general definition in Section 710(6) is narrower for other kinds of claims, so the answer can differ depending on what the harassment was based on.

Several things. The main list at Section 711(b)(1) adds marital status, genetic information, sexual orientation, gender identity, military status and housing status to the familiar federal categories. Separate subsections add status as a victim of domestic violence, a sexual offense or stalking at Section 711(i), a reproductive health decision at Section 711(k), and family responsibilities at Section 711(l), and Section 719A covers volunteer emergency responders. Section 710(22) folds hair texture and protective hairstyles into race, and Section 711(s) requires an employer to allow an employee to appear, groom and dress consistent with the employee's gender identity. Age under Section 710(1) means forty or more years.

It is not a precondition, but it can matter a great deal. Section 711A(e) codifies an affirmative defense, available only where the harassment was by a non supervisory employee, if the employer proves 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 the employer provided. Section 711A(d) separately makes an employer responsible where it knew or should have known of coworker harassment and failed to take appropriate corrective measures. Report in writing, keep a dated copy, and note who received it.

There are two duties at two different sizes. Section 711A(f)(3) requires every employer, with no size floor, to distribute the Department of Labor's sexual harassment information sheet, which goes to new employees at the commencement of employment. Section 711A(g) requires an employer with fifty or more employees in Delaware to provide interactive sexual harassment prevention training to employees within one year of commencing employment and every two years after that, with additional training for supervisors. Section 711A(f)(4) states that an employer's compliance does not insulate the employer from liability.