Delaware courts follow the District Court and Third Circuit in handling employment discrimination cases.

Several years ago, Delaware amended the Discrimination in Employment Act to allow for a right to sue in the Delaware state courts. While most employment discrimination cases continue to be filed in the District Court for the state of Delaware, the Superior Court was recently faced with a case that alleged gender discrimination in the form of a hostile work environment, quid pro quo sexual harassment, and retaliation. In this case, the plaintiff's claims were filed solely under the Delaware Discrimination Act, which is patterned from the federal anti-discrimination statutes. Since there were no Delaware cases detailing the standards to use for addressing gender, sexual harassment or retaliation claims, Judge Herlihy took the opportunity to set forth the necessary elements for these types of cases. In the decision, the court noted that "Delaware courts [will] take the 'interpretive lead' from District Court and Third Circuit Court of Appeals decisions regarding interpretation of Title VII." The court relied upon various federal court decisions to provide the objective tests necessary to establish violation(s) of the Delaware Discrimination Act.

Case Law Alert - 4th Qtr 2011