Delaware Becomes the 5th State to Require Anti-Sexual Harassment Training

The First state became the fifth state to require anti-sexual harassment training when Delaware Governor Carney signed into law a bill (SB 360) on August 29, 2018.

Inspire HR is here to outline the requirements of the new law (below) and ensure companies are not only compliant but on the path to creating safer and more inclusive workplaces.

Delaware Legislative Updates

Effective January 1, 2019

Interactive Training Requirements

  • Training must be delivered between January 1, 2019 – January 1, 2020, and then every two years going forward
  • Employers who have provided training that meets the requirements set forth below before January 1, 2019 are not required to provide additional training until January 1, 2020 – January 1, 2021, and then every two years going forward
  • For new employees, training must be delivered within one year of beginning employment, and then every two years going forward
  • Required for companies with 50 or more employees in Delawar

Employee training must:

  • Address the illegality of sexual harassment
  • Define sexual harassment with examples
  • Describe the legal remedies and complaint process available to the employee
  • Direct employees on how to contact the Delaware Department of Labor
  • Instruct employees that retaliation is prohibited

Leader training must:

  • Address specific responsibilities to prevent sexual harassment
  • Cover specific responsibilities to correct sexual harassment
  • Include legal prohibition against retaliation

Additional notes:

  • Employers need not count applicants and independent contractors as individuals when determining if they trigger the 50 employees training requirement
  • Employers do not need to provide training to applicants, independent contractors or employees who are employed less than six months continuously
  • Only employment agencies must “count and provide training to employees placed by” such agencies
    New leaders must be trained within one year of the commencement of their employment in a supervisory role

Principles and Definitions

  • Clarifies that sexual harassment involves “conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”

Such behavior rises to the level of an unlawful employment practice if:

  • Submission to the conduct is a condition of employment (either explicitly or implicitly)
  • It is the basis of employment decisions
  • It unreasonably interferes with an employee’s work performance
  • It creates an intimidating, hostile, or offensive working environment

Statute makes an employer liable for acts of sexual harassment when:

  • Employer knew or should have known of the harassment and failed to take corrective measures.
  • Harassment by a supervisor results in a “negative employment action” against an employee.
  • Negative employment action is taken against an employee in retaliation for filing a discrimination charge, participating in an investigation of sexual harassment or testifying in any proceeding about sexual harassment.

“Negative employment action” definition is expanded as:

  • Any “action taken by a supervisor that negatively impacts the employment status of an employee.”
    • Agencies and courts may interpret “negative employment action” differently, and potentially more broadly, than the federal “adverse action” standard.

The expansive definition of “employee” includes:

  • State employees
  • Joint employees
  • Unpaid interns (unique to Delaware)
  • Apprentices (unique to Delaware)
  • Applicants (unique to Delaware)

 

Notice Requirement

The Delaware Department of Labor Sexual Harassment Notice must be distributed to current employees between January 1, 2019 – July 1, 2019 and new employees at the commencement of employment.
Required for employers with four or more employees in Delaware

  • Employers may distribute the Sexual Harassment Notice either physically or electronically.
  • The Delaware Department of Labor Sexual Harassment Notice covers the same five topics as the mandatory employee training:
    1. Addresses the illegality of sexual harassment
    2. Defines sexual harassment with examples
    3. Describes the legal remedies and complaint process available to the employee
    4. Directs employees on how to contact the Delaware Department of Labor
    5. Instructs employees that retaliation is prohibited

For additional information, visit Delaware Department of Labor.