Delaware Expands Its Employment Anti-Discrimination Laws To Include Gender Identity

By Shannon Larner Brainard, Esq.*

On June 19, 2013, Delaware Governor Jack Markell signed into law Senate Bill (SB) 97, which amends the Delaware Discrimination in Employment Act, 19 Del. C. §§ 710 et seq. (DDEA), to include gender identity as a class protected from discrimination by employers. Gender identity is now among other protected classes in Delaware such as, race, color, national origin, religion, sex, sexual orientation, age, marital status and genetic information. Under the statute, "gender identity" is defined as "a gender-related identity, appearance, expression, or behavior of a person, regardless of the person's assigned sex at birth." A person's gender identity can be shown by "consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity." The law states, however, that gender identity shall not be asserted for any improper purpose, 19 Del. C. § 710(8); for example, a biological male dressing as a female solely for the purpose of gaining access to and observing women in a women's locker room.

With the passage of SB 97, transgender individuals can allege discrimination against an employer on the basis of gender identity. Delaware employers with four or more employees are subject to the DDEA, unless the employer is a religious corporation, association or society whether supported wholly or partly by government appropriations. Employers must refrain from making hiring, firing or other decisions regarding an employee's compensation, terms, conditions or privileges of employment based on that employee's gender identity. For example, an employer who interviews a transgender individual for a position within the company cannot refuse to hire that individual solely because the individual was born a male, but identifies with the female gender and dresses as a woman.

An employer is also prohibited from limiting, segregating or classifying an employee in any way that would deprive the employee of an employment opportunity or would adversely affect the employee's status as an employee because of the employee's gender identity. As an example, an employer cannot refuse to promote a transgender employee solely because the employee was born a female but identifies with the male gender and dresses as a male.

Additionally, an employer cannot terminate, refuse to hire or otherwise discriminate against an individual based on his or her gender identity because that individual has opposed the employer's discriminatory practices or because that individual has testified, assisted or participated in an investigation, proceeding or hearing to enforce Delaware's anti-discrimination law. For instance, an employer cannot retaliate against an employee who files a charge of discrimination and testifies at a hearing regarding such a charge by terminating that individual's employment. Such retaliation is a violation of the DDEA.

Employers are permitted to require employees to comply with reasonable workplace appearance, grooming and dress standards. However, the employer must allow the employee to appear, groom and dress consistent with the employee's gender identity.

An employee who alleges discrimination on the basis of gender identity must first file a charge of discrimination with the Delaware Department of Labor (DDOL) within 120 days from the date of the alleged discrimination or the date of discovering such discrimination. The employer will receive a copy of the charge from the DDOL and may file an answer within 20 days of receiving the charge. The DDOL will then review the charge and the answer within 60 days and issue its preliminary findings and recommendations. These findings and recommendations include either dismissing the charge (unless the employee provides additional information that warrants further investigation), referring the case for mediation or referring the case for investigation.

If the DDOL dismisses the charge, then it will issue a Delaware Right to Sue Notice to the employee. If the case is referred for investigation, the DDOL may conduct witness interviews, receive additional documentation and meet with the employee and/or employer. Once the investigation is complete, the DDOL will issue a final determination of either "reasonable cause" or "no reasonable cause" to believe that a violation of the law is occurring by the employer. If the DDOL issues a "reasonable cause" finding, the parties are required to attend mandatory conciliation in an attempt to resolve the matter. If the parties are unable to resolve the matter, the DDOL will then issue a Delaware Right to Sue Notice. If the DDOL issues a "no reasonable cause" finding, it will also issue a Delaware Right to Sue Notice to the employee. Once the employee has received a Right to Sue Notice, he or she may file suit in Superior Court within 90 days of receiving the notice.

If a suit is filed in the Superior Court of Delaware, the court has the authority to provide relief as follows: order the employer to cease and desist or modify its existing employment policies; order the employer to hire, reinstate or promote the employee; order payment of compensatory damages, including general, special and punitive damages; and/or order the costs of litigation and reasonable attorneys' fees to the party who prevails in the lawsuit. In cases where the DDOL brings an action against an employer for retaliating against an employee, the court has the ability to fine the employer between $1,000 and $5,000 for each violation, in addition to any liability for damages.

Employers must understand their obligations under the DDEA and refrain from basing employment decisions on an employee's or job applicant's gender identity (or other protected class) in order to avoid significant penalties under the law. It is prudent for employers to have their employment practices, policies and procedures reviewed by legal counsel to ensure compliance with the DDEA and other local, state and federal laws.    

*Shannon is an associate in our Wilmington, Delaware, office. She can be reached at 302.552.4344 or slbrainard@mdwcg.com.

Defense Digest, Vol. 19, No. 3, September 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.