NEW LAW: Sexual Harassment Training Now Required For Delaware Employees

On August 29, 2018, Delaware Governor John Carney signed House Bill 360 into law.  This new law, which goes into effect on January 1, 2019, amends the Delaware Discrimination in Employment Act by prohibiting sexual harassment in the workplace and imposing new requirements regarding sexual harassment training on most Delaware employers.

The new law makes it clear that both sexual harassment and retaliation are prohibited in employment in Delaware.  Sexual harassment is defined as “conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”  Such conduct is unlawful where:

  • submission to such conduct is made either explicitly or implicitly a term or condition of an employee’s employment;
  • submission to or rejection of such conduct is used as the basis for employment decisions affecting an employee; or
  • such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive working environment.

For purposes of the new law, an “employee” is broadly defined to include

  • an individual employed by an employer
  • state employees,
  • unpaid interns,
  • applicants,
  • joint employees, and
  • apprentices

The new law also explains when an employer will be held liable for sexual harassment.  This will occur when:

  • A supervisor’s sexual harassment results in a negative employment action of an employee;
  • The employer knew or should have known of the non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or
  • A “negative employment action” is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or lawsuit about the sexual harassment of an employee.

For purposes of the new law, a “negative employment action” means an action taken by a supervisor that negatively impacts the employment status of an employee.

The two most important changes with this new law, however, are (1) the requirement to provide employees with information regarding sexual harassment and (2) the requirement imposed on large employers to provide sexual harassment training to all employees.

Sexual Harassment Information Sheet

All Delaware employers with 4 or more employees will be required to provide all employees with an information sheet regarding sexual harassment.  This information sheet will be created by the Delaware Department of Labor and made available to employers once developed.

Starting January 1, 2019, employers will be required to provide the Sexual Harassment Information Sheet to all new employees at the start of employment.  Employers must also provide the Sexual Harassment Information Sheet to all existing employees no later than July 1, 2019.

Sexual Harassment Training

In addition to the notice requirement, all Delaware employers with 50 or more employees will be required to provide all employees with anti-harassment training.  For purposes of the employee count, applicants and independent contractors are not counted).

Starting January 1, 2019, these employers are required to provide interactive training and education to employees regarding the prevention of sexual harassment.  This training must occur in accordance with the following timeline:

  • New Employees: Within 1 year of the commencement of employment and every 2 years thereafter;
  • Existing Employees: By January 1, 2020 and every 2 years thereafter.

The employee training must address the following elements:

  • The illegality of sexual harassment;
  • The definition of sexual harassment using examples;
  • The legal remedies and complaint process available to the employee.
  • Directions on how to contact the Department
  • The legal prohibition against retaliation.

In addition to the above training, employers must provide their supervisors with additional interactive sexual harassment training.   This training must occur in accordance with the following timeline:

  • New Supervisors: Within 1 year of the commencement of employment as a supervisor and every 2 years thereafter;
  • Existing Supervisors: By January 1, 2020 and every 2 years thereafter.

The supervisor training must address the following elements:

  • The specific responsibilities of a supervisor regarding the prevention and correction of sexual
  • harassment
  • The legal prohibition against retaliation.

NOTE:  Since supervisors are also employees of the company, a supervisor must receive both the employee training and the supervisor training.  Employers can fulfill this obligation by providing supervisors a training that contains all required elements.

Take home for employers

It is recommended that Delaware employers start preparing for this new law by reviewing their existing anti-discrimination/harassment policies and developing a plan for providing the required training to their employees.