Delaware Mandates Sexual Harassment Prevention Training in the Workplace

October 22, 2018 Labor & Employment Alert

Delaware has joined the growing list of states that require employers to take action designed to prevent harassment in the workplace. The new law provides additional protections to employees, mandates notice requirements and requires larger employers (those with 50 or more employees) to provide sexual harassment prevention training.

Sexual harassment involves conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. This conduct rises to the level of an unlawful employment practice if submission to such conduct is (explicitly or implicitly) is a term or condition of the individual’s employment, is the basis of an employment decision, unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment.

An employer can be held responsible for sexual harassment of an employee in cases where:

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

A negative employment action is broadly defined. It is any action taken by a supervisor that negatively impacts the employee’s employment status.

Notice Requirement for Employers with 4+ Employees

Beginning on January 1, 2019, employers with four or more employees will be required to provide an Information Sheet issued by the Delaware Department of Labor to all new employees when they begin employment.

Employers may distribute the information sheet either electronically or in hard copy and will have six months after the effective date (until July 1, 2019) to send it to existing employees.

Training Requirements for Employers with 50+ Employees

Employers with 50 or more employees must provide interactive sexual harassment prevention training to all employees every two years. Supervisors must be provided with additional training.

The training must include:

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

Additionally, supervisors must receive training regarding:

  • The specific responsibilities of supervisors to prevent and correct sexual harassment; and
  • The legal prohibition against retaliation.

All employees must receive sexual harassment training by January 1, 2020. Employers who already have a statutory-compliant training program in place, however, are exempt until January 1, 2020.

After the initial training, existing employees must receive sexual harassment training every two years. New employees must receive sexual harassment training within one year of hire, and every two years thereafter. New supervisors must receive supervisor-specific training within one year of hire or promotion to supervisor, and then every two years thereafter.

How to Prepare for January 1

During 2019, employers with 50 or more employees must hold a training that complies with the statute. However, an employer that already has a training program that meets the statutory requirements is exempt from training until January 1, 2020.

Additionally, employers must send the Delaware Department of Labor’s sexual harassment information sheet to all existing employees by July 1, 2019. New hires must receive the notice upon commencement of their employment.

For more information about this alert, please contact Chaney Hall at [email protected] or 302.622.4276 or Steven K. Ludwig at [email protected] or 215.299.2164 or any other member of Fox Rothschild’s Labor & Employment Department