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CLIENT ALERT: Delaware Expands Employment Anti-Discrimination Statute

July 20, 2015

Delaware recently joined a growing number of states by expanding its employment anti-discrimination statute to provide protections to employees who are victims of domestic violence, sexual offenses, or stalking. In addition to prohibiting discrimination against such individuals, the statute requires employers to provide reasonable accommodations to employees that relate to the domestic violence, a sexual offense, or stalking.

In order to obtain the protections of the statute, an employee must be a victim of one of several defined crimes. The new amendment sets forth each of the classes of crimes covered by the statute by incorporating definitions found elsewhere in the Delaware Code. For instance, “domestic violence” refers to abuse perpetrated by an individual against either another member of his or her family, a former spouse, a person with whom the individual is cohabiting or holding him or herself out as a couple, a person with whom the individual had a child, or a person with whom he or she is in a “substantive dating relationship.” “Sexual offense” refers to a number of sexual crimes that range from indecent exposure to rape. “Stalking” refers to situations where a “person knowingly engages in a course of conduct directed at a specific person and that conduct would cause a reasonable person to” fear physical injury or suffer other significant mental anguish or distress.

Significantly, an employee who is a victim of one of the defined crimes must “verify” the offense in order to gain the protections of the statute. Verification can be accomplished by an official document, such as a court order, or by a reliable third-party professional, such as a law-enforcement agency or office, a domestic violence counselor, or a health care provider. However, no specific form of verification is required by the statute.

Employees who meet the above criteria are covered by the statute and are entitled to two separate protections. First, employers may not fail to hire, discharge, or otherwise discriminate, with respect to the compensation, terms or conditions of employment, against any individual because the individual was the victim of domestic violence, a sexual offense, or stalking.

Second, employers must make reasonable accommodations to the limitations known to the employer and related to the domestic violence, sexual offense, or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. Notably, the term “limitation” is not defined in the statute. “Reasonable accommodation” is defined as “making reasonable changes in the work place, including, but not limited to, reasonable changes in the schedules or duties of the job in question that would accommodate the person who was the victim of domestic violence, a sexual offense, or stalking, enabling such person to satisfactorily perform the essential duties of the job in question.” The only examples of reasonable accommodations provided by the statute, however, are making changes to the employee’s schedule and permitting the employee to use accrued leave.

These amendments to Delaware law become effective on December 30, 2015. Employers are advised to review their employment handbooks and consider revising certain policies, including, but not limited to, anti-discrimination policies, and to provide supervisory training to alert them to this change.