What Does the New Delaware Sexual Harassment Law Mean for Your Organization?

Sexual harassment laws at the state level have been cropping up all over. This is what you should know about the new Delaware sexual harassment law.

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Many states are seeing new sexual harassment laws much in place, and new data are showing an increase in sexual harassment reports. If you’re an employer in Delaware, you’re probably aware of the new sexual harassment law in your state. It officially took effect on Jan. 1, 2019.

HB 360 adds new provisions to the Delaware Discrimination in Employment Act (DDEA). While the DDEA already contained language preventing  discrimination based on sex, advocates argued that the law failed to specifically address sexual harassment The new law contains language addressing  this issue.

What Is Sexual Harassment?

Under the Delaware law, sexual harassment is defined as conduct that includes sexual advances, verbal or physical conduct that is sexual in nature, or requests for sexual favors. This conduct is deemed illegal when one of the following three conditions is met:

  1. The victim’s submission to the conduct is a term or condition of employment. This can be either explicit or implicit.
  2. Employers base employment decisions on the victim’s submission to or rejection of the harassment.
  3. The harassment unreasonably interferes with the victim’s work performance, or creates an intimidating, hostile, or offensive work environment.

What’s Different About This Law?

If you’re an employer in Delaware, you might be wondering what exactly has changed. Hasn’t sexual harassment been illegal already?

It has. Title VII of the Civil Rights Act has prohibited employment discrimination based on race, color, sex, religion, or national origin since 1964. This law applies to all US employers with 15 or more employees. In 1980, the Equal Employment Opportunities Commission (EEOC) issued guidance stating that sexual harassment is a form of sex discrimination that is illegal under Title VII. In 1986, the Supreme Court concurred, and found that speech can be a form of harassment as well.

As noted above, the DDEA had already prohibited discrimination based on sex, while the new Delaware sexual harassment law specifically identifies sexual harassment as a form of discrimination. But it doesn’t stop there.

The new law includes a number of provisions:

  • It covers all Delaware employers with four or more employees in the state.
  • It expressly includes the state government and its agencies, the Delaware General Assembly, and labor organizations.
  • It expands the types of workers covered by the DDEA. For instance, the new Delaware sexual harassment law covers state employees, unpaid interns, job applicants, joint employees, and apprentices.
  • It requires the state Department of Labor to create an information sheet for employers to distribute. Employers must give this information sheet to all new employees on their start date. Existing employees must receive it by July 1, 2019.
  • Employers with at least 50 employees in the state must also provide “interactive training and education to employees regarding the prevention of sexual harassment.”

How Do I Ensure Compliance With This Law?

As an employer, you are responsible for your employees’ conduct in the workplace.

Under the new Delaware law, employers may be held responsible for sexual harassment in various circumstances, including:

  • Employees being harassed by supervisors or staff, and negative employment action being taken against them.
  • The employer was aware, or should have been aware of sexual harassment taking place against its employee, and did not rectify the behavior.
  • The employee faced retaliatory action due to a r a sexual harassment complaint, filing a charge, participating in an investigation, or testifying in a proceeding about sexual harassment.

The following are some best practices in regards to the new Delaware law:

  • Teaching supervisors the meaning of sexual harassment, and informing the workforce that it will not be tolerated.
  • Engaging with, and taking necessary corrective action against charges of sexual harassment.
  • Frequent reminders to the workforce that sexual harassment will not be tolerated, and should be reported whenever they see it.
  • Ensuring that every worker knows about all of the preventative and corrective opportunities available to them, and that they are encouraged to take advantage of them whenever necessary.
  • Provide employees with multiple avenues for reporting harassment. Individuals may be uncomfortable discussing or reporting issues to their manager. Ensure that there is a different reporting chain, or offer an anonymous reporting system.

Despite advances in the prevention of employment discrimination, sexual harassment remains a major concern in the workforce.. The new Delaware sexual harassment law attempts to address this issue and prevent future instances of workplace harassment. We hope that this guide will help you to understand the new law, and take steps towards  compliance in your business.

Please note that while this article is meant to be informative, it is not comprehensive and by no means should be taken for legal advice. Please consult legal guidance when putting new sexual harassment policies into place.
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