State Law: Delaware


The Law

Delaware Code, Title 19, Part I, Ch. 7 makes it illegal for an employer or labor organization to discriminate against someone on the basis of sex.

An "employee" under the Delaware Discrimination in Employment Act means "an individual employed by an employer, but does not include any individual employed in agriculture or in the domestic service of any person; any individual who, as a part of that individual's employment, resides in the personal residence of the employer; any individual employed by said individual's parents, spouse or child; or any individual elected to public office in the State or political subdivision by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the merit service rules or civil service rules of the state government or political subdivision."

Under Delaware law, an "employer" means, "any person employing 4 or more employees within the State at the time of the alleged violation, including the State or any political subdivision or board, department, commission or school district thereof."

Thus, the Delaware statute against discrimination in the workplace applies to all employers with four or more employees, while Title VII only applies to employers with 15+ employees.

The Delaware Discrimination in Employment Act specifically covers employment discrimination on the basis of race, color, religion, age, sex (including pregnancy), marital status, genetic information, and national origin.

Delaware makes it unlawful for an employer to "limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee" because of that individual's sex.

Filing A Complaint

The Delaware Department of Labor's Office of Labor Law Enforcement investigates complaints filed with it free of charge. Complaints under state law must be filed within 120 days of the date you became aware you were being discriminated against or the date of the alleged illegal act.

You may file a complaint with the Commission by contacting one of the regional offices. The Wilmington regional office can be reached at (302) 761-8200, and the phone number for the Milford regional office is (302) 422-1134. A Labor Law Enforcement Officer will interview you about your claim of discrimination, after which you must sign a charge of discrimination.

Once you file a complaint with the Department, it will send your employer a copy of your charge of discrimination, stating that you believe you were/are being discriminated against. The employer will have an opportunity to respond to this complaint.

If the employer does not wish to try to settle the complaint right away, the Department will conduct an investigation to determine whether there is reasonable cause to believe you have been discriminated against and your rights violated.

If reasonable cause is found, you and your employer will be required to negotiate a settlement through conciliation efforts. If no conciliation is reached, the Department may issue a Right to Sue letter so that you can file a claim in either state or federal court. In very extraordinary circumstances, the Attorney General may exercise his/her discretion to pursue a charge of discrimination in Superior Court against an employer where reasonable cause is found.

You may decide to go through the federal or state court process instead of the Department's investigative process. You must first file with the EEOC or Delaware Department of Labor's Office of Labor Law Enforcement and request a Notice of Right to Sue in order to file in court. The attorney you hire will explain this process to you.

Many Delaware attorneys choose to file employment discrimination cases in federal court. However, most cases may be brought in either state or federal court. State law does not allow for punitive damages, which are allowed under federal law. Delaware does not limit, however, compensatory damages (emotional pain and suffering) for a discrimination claim, which are capped under federal law.

For more information and a more detailed explanation of the complaint process, please visit the Delaware Department of Labor's Office of Labor Law Enforcement website.