While changes in the Delaware Discrimination Act are of note to all employers, the recent changes in the Act are of special significance to small employers who employ fewer than fifteen (15) people. Employers employing fifteen (15) or more employees have long been subject to suit for violation of the various federal anti-discrimination statutes, including Title VII and the Age Discrimination in Employment Act. Now, even very small employers are subject to suit in state court. The revised Delaware statute, which applies to employers of four (4) or more individuals, provides a new cause of action in the Delaware Superior Court for protected employees. Such employees will no longer have a separate common law cause of action (based on the duty of good faith and fair dealing) for the same alleged violation; the amended statute now provides that the Discrimination in Employment Act is the exclusive and sole remedy for employment discrimination claims.
Employees are protected under the Delaware statute on the basis of their race, marital status, genetic information, age (40 years or more), color, religion, sex and national origin. Thus, because the statute provides protection to classes of employees that are not covered under federal law (i.e., based on marital status and genetic information), [1] even large employers may find themselves at increased risk of litigation.
The administrative process also has changed. [2] Employees now have a longer period in which they may make their complaint; complaining parties must file a Charge of Discrimination within 120 days (up from 90) of the alleged unlawful employment act or its discovery. The Charge must be in writing, verified and signed by the Charging Party. The Respondent employer is required to file an answer within twenty (20) days of receiving the Charge, and must serve its answer on the Charging Party. The DDOL is required to review these submissions within sixty (60) days after the Respondent serves its answer, and issue preliminary findings with recommendations. Those recommendations may include: (1) dismissing the Charge unless additional information is received which warrants further investigation; (2) referring the case for mediation requiring the parties' appearance; or (3) referring the case for investigation. The DDOL has indicated that it will “fast track” cases that it initially finds to be of no merit, so as to dispose of these cases.
After investigation, the DDOL will issue a final determination, finding either “Reasonable Cause” or “No Reasonable Cause” to believe that a violation occurred. All cases resulting in a Reasonable Cause determination will require the parties to appear for compulsory conciliation. At the end of the administrative process, whether by virtue of a No Reasonable Cause finding, failed conciliation, or dismissal of the Charge, a Delaware right-to-sue notice will issue.
Like the federal anti-discrimination statutes, the Delaware Act requires a complaining employee to exhaust the administrative remedies provided by the statute prior to filing suit. However, in its discretion, the Delaware Department of Labor may issue a right-to-sue notice after issuing preliminary findings and recommendations. Thus, a charging party may be able to obtain a right-to-sue notice without awaiting the outcome of the extended administrative process. (It remains to be seen what standard the DDOL will apply in granting such requests.) Once a right-to-sue notice is issued, the complaining party must file suit within 90 days.
An employee who files suit must elect whether he or she will proceed in federal or Delaware court. If a Charging Party files in Superior Court and in federal court, the Respondent employer may file an application to dismiss the Superior Court action. Either way, the damages available are the same, as the Delaware Act also has been amended to provide damages and other remedies mirroring those available under federal law, including back pay, compensatory damages, punitive damages, equitable relief, and attorneys' fees. In that the provisions of the Delaware Act now may allow a complainant to file suit much more quickly than may be possible under federal law,[3] it is possible that many plaintiff's will elect to proceed in the Delaware Courts.
PA&C Policy Advisor:
At a minimum all employers should have a written policy prohibiting discrimination and harassment, which is included in their employee handbook, that includes a complaint procedure and states that appropriate disciplinary action will be taken against any employee who engages in discrimination or harassment. In keeping with “best practices,” employers also should conduct annual training on their harassment and discrimination policy, reissue the policy to employees, and obtain signed acknowledgements for the employee's attendance at the training and receipt of the policy. In light of the changes to Delaware law and increased litigation risk, employers now are advised to provide separate training to all supervisory level employees, emphasizing the categories of protected employees under state law (including marital status and genetic information) that may now result in litigation, and identifying situations that may implicate these protected categories.
The views expressed in this article are those of the author and may not reflect the views of Potter Anderson & Corroon LLP or its clients. Nothing in this website or the publications included in this website is intended to create an attorney-client relationship. This publication should not be deemed legal advice and should not be relied on by you as legal advice related to your particular circumstances.
Wendy K. Voss is a partner with the Wilmington, Delaware firm of Potter Anderson & Corroon LLP, where she has practiced since 1992. Ms. Voss graduated, summa cum laude, from the Marshall Wythe School of Law, College of William & Mary, in 1992 and graduated from the University of Michigan, magna cum laude, in 1974. Ms. Voss is a member of the Order of the Coif and was a Member of the William and Mary Law Review.
Ms. Voss's practice is concentrated in the areas of labor and employment law, in which she exclusively represents management. She provides advice regarding personnel policies and practices to human resources personnel and other members of management, and training in personnel-related matters. In addition, Ms. Voss regularly defends employers in employment and employment-related matters before federal and state courts and administrative agencies. Ms. Voss is a member of American Bar Association ("ABA") and the Delaware State Bar Association ("DSBA"). She is a former Chair of the Labor and Employment Law Section of the DSBA (1998-1999).
[1] In regard to the “extra” protected class of genetic information, the statute provides that employers may not discriminate against an employee on the basis of that employee's genetic information, which includes failure to hire, discharge, or any action that would deprive or tend to deprive the individual of employment opportunities or otherwise adversely affect the individual's status as an employee. An employer also is not permitted to collect, directly or indirectly, any genetic information concerning any employee or applicant for employment, or any member of their family, unless (1) the information is job related and consistent with business necessity; or (2) the information is sought in connection with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan (e.g., medical insurance).
[2] The statute authorizes the DDOL to promulgate regulations further defining the administrative process. The DDOL has stated in discussion with attorneys at PA&C that it will wait to issue such regulations until it has more experience with the new law.
[3] A complainant who cross-files a Charge of Discrimination with the DDOL and EEOC must await a right to sue notice from the EEOC before filing suit in federal court. In such cases, the EEOC generally only considers the claim once it has been fully processed by the DDOL, and the EEOC's right to sue notice may be delayed as much as a year after the DDOL has issued its ruling. However, a Title VII complainant who wishes to proceed in federal court may ask to have the case dismissed and a right to sue notice issued by the EEOC 180 days after the Charge has been filed. Similarly, individuals who file age discrimination claims with the EEOC under the Age Discrimination in Employment Act are permitted by the statute to bring suit 60 days after the claim has been filed with the EEOC.