Delaware Code Title 19 Sec. 711 – Unlawful employment practices; employer practices
(a) Definitions. —
Terms Used In Delaware Code Title 19 Sec. 711
- Age: as used in this subchapter means the age of 40 or more years of age. See Delaware Code Title 19 Sec. 710
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Credit Score: A number, roughly between 300 and 800, that measures an individual's credit worthiness. The most well-known type of credit score is the FICO score. This score represents the answer from a mathematical formula that assigns numerical values to various pieces of information in your credit report. Source: OCC
- Domestic violence: means the same as defined in § 1041 of Title 10, verified by an official document, such as a court order, or by a reliable third-party professional, including a law-enforcement agency or officer, a domestic violence or domestic abuse service provider, or health-care provider. See Delaware Code Title 19 Sec. 710
- Employee: means an individual employed by an employer, but does not include:
- 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. See Delaware Code Title 19 Sec. 710
- Employment agency: means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person. See Delaware Code Title 19 Sec. 710
- Family responsibilities: means the obligations of an employee to care for any family member who would qualify as a covered family member under the Family and Medical Leave Act [26 U. See Delaware Code Title 19 Sec. 710
- Gender identity: means a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth. See Delaware Code Title 19 Sec. 710
- Labor organization: includes any organization of any kind, any agency or employee representation committee, group, association or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment, any conference, general committee, joint or system board or joint council so engaged which is subordinate to a national or international labor organization. See Delaware Code Title 19 Sec. 710
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: includes 1 or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy or receivers. See Delaware Code Title 19 Sec. 710
- Pregnancy: means pregnancy, childbirth, or a related condition, including, but not limited to, lactation. See Delaware Code Title 19 Sec. 710
- Public employer: means the State of Delaware, its agencies, or political subdivisions. See Delaware Code Title 19 Sec. 710
- Race: includes traits historically associated with race, including hair texture and a protective hairstyle. See Delaware Code Title 19 Sec. 710
- Reasonable accommodation: has the meaning given this term in § 722 of this title, except that all references to disability shall instead be references to known limitations of a person related to pregnancy, childbirth, or a related condition. See Delaware Code Title 19 Sec. 710
- Religion: as used in this subchapter includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that the employer is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. See Delaware Code Title 19 Sec. 710
- Reproductive health decision: means any decision related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy. See Delaware Code Title 19 Sec. 710
- Secretary: means the Secretary of the Department of Labor or the Secretary's designee. See Delaware Code Title 19 Sec. 710
- Sexual offense: means the same as defined in § 761 of Title 11, verified by an official document, such as a court order, or by a reliable third-party professional, including a law-enforcement agency or officer, a domestic violence or domestic abuse service provider, or health-care provider. See Delaware Code Title 19 Sec. 710
- Sexual orientation: includes heterosexuality, homosexuality, or bisexuality. See Delaware Code Title 19 Sec. 710
- Stalking: means the same as in § 1312 of Title 11, verified by an official document, such as a court order, or by a reliable third-party professional, including a law-enforcement agency or officer, a sexual assault service provider, or health-care provider. See Delaware Code Title 19 Sec. 710
- State: means the State of Delaware; and when applied to different parts of the United States, it includes the District of Columbia and the several territories and possessions of the United States. See Delaware Code Title 1 Sec. 302
- Statute: A law passed by a legislature.
- Undue hardship: means an action requiring significant difficulty or expense when considered in light of factors such as: the nature and cost of the accommodation; the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer. See Delaware Code Title 19 Sec. 710
- United States: includes its territories and possessions and the District of Columbia. See Delaware Code Title 1 Sec. 302
As used in this section:
(1) “Certifying body or organization” means an independent body or entity duly accredited to issue a formal certification that an applicant meets specific local, state, or national standards or requirements.
(2) “Licensing body or organization” means an agency, board, association, or other entity that authorizes individuals to practice a profession in the State and issues a license, certificate, permit, or other authorization to the individual which is required to legally conduct business in the State.
(3) “Regulatory body or organization” means a government agency or entity established by legislation to enforce that legislation and to set and enforce standards implementing the legislation.
(b) It shall be an unlawful employment practice for an employer to:
(1) Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin; or
(2) 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 such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin.
(3) a. For any employment-related purpose, fail or refuse to treat an employee or applicant for employment that the employer knows or should know is affected by pregnancy as well as the employer treats or would treat any other employee or applicant not so affected but similar in the ability or inability to work, without regard to the source of any condition affecting the other employee’s or applicant’s ability or inability to work;
b. Fail or refuse to make reasonable accommodations to the known limitations related to the pregnancy of an applicant for employment or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer;
c. Deny employment opportunities to a job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy of an employee or applicant for employment;
d. Require an applicant for employment or employee affected by pregnancy to accept an accommodation that such applicant or employee chooses not to accept, if such applicant or employee does not have a known limitation related to pregnancy or if such accommodation is unnecessary for the applicant or employee to perform the essential duties of her job;
e. Require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations related to the pregnancy of the employee; or
f. Take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy of the employee.
(c) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin or to classify or refer for employment any individual on the basis of race, marital status, genetic information, color, religion, age, sex (including pregnancy), sexual orientation, gender identity, or national origin.
(d) It shall be an unlawful employment practice for a labor organization to:
(1) Exclude or expel from its membership or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin;
(2) Limit, segregate or classify its membership or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive any individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect the individual’s status as an employee or as an applicant for employment because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin; or
(e) It shall be an unlawful employment practice for any employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin in admission to or employment in any program established to provide apprenticeship or other training.
(f) It shall be an unlawful employment practice for an employer, employment agency, labor union or joint labor-management committee controlling apprenticeship or other training or retraining, including on the job training programs to intentionally collect, directly or indirectly, any genetic information concerning any employee or applicant for employment, or any member of their family, unless:
(1) It can be demonstrated that the information is job-related and consistent with business necessity; or
(2) The information or access to the information is sought in connection with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan.
(g) It shall be an unlawful employment practice for any employer, employment agency, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discharge, refuse to hire or otherwise discriminate against any individual or applicant for employment or membership on the basis of such person‘s race, marital status, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin, because such person has opposed any practice prohibited by this subchapter or because such person has testified, assisted or participated in any manner in an investigation, proceeding, or hearing to enforce the provisions of this subchapter.
(h) (1) It shall be an unlawful employment practice for any public employer to inquire into or consider the criminal record, criminal history, credit history, or credit score of an applicant for employment during the initial application process, up to and including the first interview.
(2) If an applicant is otherwise qualified, a public employer may inquire into or consider an applicant’s criminal record, criminal history, credit history or credit score after the completion of the first interview.
(3) A public employer may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity. The public employer shall consider the following factors in its hiring decision:
a. The nature and gravity of the offense or conduct;
b. The time that has passed since the offense or conduct and/or the completion of the sentence; and
c. The nature of the job held or sought.
(4) This subsection does not apply to any state, county or municipal police force, the Department of Correction, the Department of Justice, the Office of Defense Services, the courts, or any position where federal or state statute requires or expressly permits the consideration of an applicant’s criminal history.
(i) It shall be an unlawful employment practice for an employer to:
(1) Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because the individual was the victim of domestic violence, a sexual offense, or stalking; or
(2) Fail or refuse to make reasonable accommodations to the limitations known to the employer and related to domestic violence, a sexual offense, or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer. For purposes of this subsection, “reasonable accommodations” means making reasonable changes in the workplace, 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. Reasonable accommodations include allowing the individual to use accrued leave to address the domestic abuse, sexual offense, or stalking.
(j) It shall be an unlawful employment practice for an employer to:
(1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing his or her wages or the wages of another employee.
(2) Require an employee to sign a waiver or other document which purports to deny an employee the right to disclose or discuss his or her wages.
(3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing his or her wages or the wages of another employee.
(4) Nothing in this section creates an obligation for an employer or employee to disclose wages.
(k) It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of a reproductive health decision by the individual.
(l) (1) It shall be an unlawful employment practice for an employer to:
a. Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual’s family responsibilities, except with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards.
b. 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 such individual’s family responsibilities, except with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards.
(2) This subsection does not create any obligation for an employer to make special accommodations for an employee with family responsibilities, so long as all policies related to leave, scheduling, absenteeism, work performance, and benefits are applied in a nondiscriminatory manner.
(m) It shall be an unlawful employment practice for an employer to request or require a prospective employee’s age, date of birth, dates of attendance at or date of graduation from an educational institution on an initial employment application, provided that the provisions of this subsection shall not apply to any employer requesting or requiring such information:
(1) Based on a bona fide occupational qualification or need; or
(2) When such information is required to comply with any provision of state or federal law, or the requirements of any regulatory, licensing, or certifying body or organization.
For age to constitute “a bona fide occupational qualification or need” under this section, an employer must establish that age is an essential component of one’s ability to successfully perform a particular job and is necessary to the normal operation of the business.
(n) Notwithstanding any other provision of this subchapter:
(1) It shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program on the basis of religion, genetic information, age, sex (including pregnancy), sexual orientation, gender identity, or national origin in those certain instances where religion, genetic information, age, sex (including pregnancy), sexual orientation, gender identity, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise; and
(2) It shall not be an unlawful employment practice for a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society or if the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion.
(o) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, marital status, genetic information, color, religion, age, sex (including pregnancy), sexual orientation, gender identity, or national origin.
(p) Nothing contained in this subchapter as it applies to discrimination because of age or sex shall be interpreted to affect or interfere with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan, provided that such policy, system or plan is not merely a subterfuge to evade the purpose of this subchapter.
(q) (1) Nothing in this subchapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age, and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan, or any combination of such plans, of the employer of such an employee, which equals, in the aggregate, at least $44,000.
(2) In applying the retirement benefit test of paragraph (q)(1) of this section, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Secretary, United States Department of Labor, pursuant to 29 U.S.C. § 631(c)(2), so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.
(r) Nothing in this subchapter shall be interpreted to require employers to offer health, welfare, pension or other benefits to persons associated with employees on the basis as such benefits are afforded to the spouses of married employees.
(s) Nothing in this subchapter shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of state or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity.
19 Del. C. 1953, § ?711; 58 Del. Laws, c. 285; 62 Del. Laws, c. 97, § ?2; 64 Del. Laws, c. 333, § ?1; 70 Del. Laws, c. 186, § ?1; 71 Del. Laws, c. 457, §§ ?3, 4; 74 Del. Laws, c. 356; 77 Del. Laws, c. 90, §§ ?17-19; 79 Del. Laws, c. 47, § ?19; 79 Del. Laws, c. 227, § ?2; 79 Del. Laws, c. 429, § ?1; 80 Del. Laws, c. 26, § ?6; 80 Del. Laws, c. 57, § ?2; 80 Del. Laws, c. 290, § 1; 80 Del. Laws, c. 291, § 2; 80 Del. Laws, c. 292, § 2; 83 Del. Laws, c. 421, § 1;