Delaware Passes Sexual Harassment Law Which Includes Training Mandates for Employees

Q.  Does Delaware have any laws requiring employers to train employees on their harassment policy?

A.  Yes. On August 29, 2018, Delaware enacted a sexual harassment law aimed to broaden protections for workers against sexual harassment. Among other things, the law requires employers to provide sexual harassment prevention training to all employees, with supervisors receiving additional training.  The law also instructs employers as to the content of the training.

Specifically, employers in Delaware with 50 or more employees must provide interactive training and education to employees regarding sexual harassment training. Such training shall be provided to new employees within one year of hire, and thereafter every two years, and to existing employees within one year of the effective date of the Act and thereafter every two years.  The training must include all of the following:

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

In addition, employers must provide supervisors with interactive training that includes: (i) specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; and (ii) the legal prohibition against retaliation. New supervisors must receive training within one year of employment and every two years thereafter, and existing supervisors must receive training within one year of the effective date of the Act (January 1, 2020), and every two years thereafter.  If an employer already provided training that meets the requirements of the law, the employer is exempt from training until January 1, 2020.

In addition to the training requirement, the new Delaware law provides that an employer is responsible for the sexual harassment of an employee when (1) the supervisor’s sexual harassment results in a negative employment action of an employee; (2) 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 (3) 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.

A “negative employment action” is defined broadly as “an action taken by a supervisor that negatively impacts the employment status of an employee.” It is unknown whether courts will interpret this to mean an “adverse action” that affects the terms or conditions of employment, or some broader type of “negative action,” such as a “hostile work environment.”  An action broader than what has been traditionally defined as a “adverse action” could significantly expand the situations in which employers can be held liable under the Act.

A Delaware employer can avoid liability based on a non-supervisory employee’s action if the employer: (1) exercised reasonable care to prevent and correct any harassment promptly; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

Notice Requirements for Employers

To comply with the notice requirements of the law, employers must distribute an information sheet, created by the Delaware Department of Labor, which includes information regarding employees’ right to be free from sexual harassment in the workplace.  New employees must receive the notice upon hire (beginning January 1, 2019).  Current employees must receive the notice by July 1, 2019.  The notice can be distributed electronically or physically.

Kali T. Wellington-James