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Delaware Expands Sexual Harassment Protections to More Workers (1)

Aug. 29, 2018, 6:36 PMUpdated: Aug. 29, 2018, 8:09 PM

Employees in Delaware could see expanded sexual harassment protections under a new law Gov. John Carney (D) signed Aug. 29.

House Bill 360, which goes into effect Jan. 1, broadens the types of workers covered by the Delaware Discrimination in Employment Act’s sexual harassment provisions to include state employees, unpaid interns, applicants, joint employees, apprentices, and individuals who work for employment agencies. It requires companies with 50 or more employees in the state to provide sexual harassment training to workers and supervisors every two years.

The law also instructs the state’s Department of Labor to create an information sheet on sexual harassment that employers must distribute to employees. Employers who have four or more employees in the state would be subject to the new rules.

Delaware’s law comes amid a growing number of state laws since the #MeToo movement that seek to curtail sexual harassment in the workplace. Just last week, California’s legislature passed legislation that would ban employers from using nondisclosure agreements and mandatory arbitration clauses for employees’ sexual harassment claims.

Delaware’s new law reflects a growing trend among states to legislate sexual harassment training in the workplace, which is not a requirement under federal law, Jason C. Schwartz, head of the labor practice at Gibson, Dunn & Crutcher LLP in Washington, D.C., told Bloomberg Law in a phone call Aug. 29. New York, Connecticut, and California have already passed laws that require employers to provide sexual harassment training, and other states such as Pennsylvania have proposed similar rules.

An estimated 75 percent of all workplace harassment incidents go unreported, sponsors of the Delaware bill said, citing a study from the federal Equal Employment Opportunity Commission.

Spells Out Existing Law

About half of the law simply codifies protections that already exist under federal law and case law set forth by state courts, Barbara H. Stratton, Esq., a plaintiff’s employment law attorney at Knepper & Stratton in Wilmington, Del., told Bloomberg Law in a phone call Aug. 29.

The law defines sexual harassment as an unlawful employment practice and makes an employer responsible for sexual harassment of an employee if the employer “knew or should have known” about it and failed to take appropriate corrective measures.

The law also bars employers from retaliating against an employee who files a charge of discrimination, participates in an investigation of sexual harassment, or testifies in any proceeding or lawsuit about the sexual harassment of an employee.

“My frustration is that I would rather that the state of Delaware put more resources into the Delaware Anti-Discrimination Unit rather than passing more legislation,” Stratton said. Some of her clients have been waiting for a year and a half for an investigator to be assigned to their case, she said.

Cerron Cade, Secretary of Labor for the state of Delaware, said his department “is committed to ensuring that Delawareans are protected in the workplace.”

“This new law makes that job a lot easier,” Cade said in a statement. “By focusing on training, prevention, and covering more workers under the law, employees and employers can experience thriving and productive workplaces.”

Could Offer More Protection

The Delaware law could increase protections for employees by including a definition of sexual harassment that goes beyond the “severe or pervasive” standard found in federal law, Joshua Friedman, an attorney specializing in sexual harassment at Friedman & Houlding LLP in New York, told Bloomberg Law in an email Aug. 29.

Currently, a lot of sexual harassment is simply dismissed under federal law as not being “severe or pervasive,” Friedman said. The Delaware law, however, makes sexual harassment an unlawful employment practice if such conduct “creates an intimidating, hostile, or offensive work environment.”

That language “would encompass a lot of conduct missed by ‘severe or pervasive’” under federal law, Friedman said.

Sponsored by Rep. Helene M. Keeley (D) and Sen. Stephanie L. Hansen (D), the bill passed the House 24-14 on July 1 and passed the Senate 11-6 the same day.

(Updated to add statement from Delaware Secretary of Labor Cerron Cade.)

To contact the reporter on this story: Leslie A. Pappas in Philadelphia at lpappas@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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