Comments on the Delaware DOL’s Final Regulations on Discrimination Charges

Charges of employment discrimination in Delaware are handled by the Delaware Department of Labor (DDOL). Until now, the charge process has not been regulated by state law. How the DDOL handles a charge of discrimination and how charging parties and responding employers may be involved in the process have been available only as proposed regulations until last month when the DDOL published its first set of final regulations applicable to the charge process.

In a prior post, the new regulations were summarized and explained. In this follow-up post, I offer some of my thoughts on these important recent changes.

Most of the procedures set forth in the new regulations will be familiar to anyone who has been involved with a charge of discrimination filed with the DDOL during the past few years. One of the most useful recent developments, even prior to the issuance of the new regulations, has been an increased emphasis on mediation. In my view, unless the employer is sure that the Administrator will be dismissing the charge, the employer should always attempt mediation because it often results in a quick and (relatively) inexpensive resolution of the dispute. Mediation is simply a meeting between the mediator, the charging party, the employer, and their attorneys, if any. Both sides are given an opportunity to talk about the case in an effort to resolve it without further litigation.

Settlement means the case will end without an admission of liability by the employer and it is the only way to control the outcome of the dispute. Even if mediation is unsuccessful, participating in the process is still helpful because the employer will gain insight into the charging party’s view of the claim. The employer also will be able to determine the facts upon which the charging party intends to rely.

At the very least, the time it takes to schedule and participate in mediation will allow the employer and its attorney to conduct a more thorough investigation of the facts and law and prepare a better answer to the charge than they would be able to do in the 20 days contemplated by the regulations.

Employers may be a bit disconcerted by the regulations’ failure to require the DDOL to give notice to a respondent employer when it issues a subpoena. When the DDOL published its proposed regulations and opened them to comments, employer representatives, including Young Conaway Stargatt & Taylor, requested that the regulations provide for such notice.

We also requested that the employer be permitted to participate in depositions to enable it to have a more complete understanding of the facts that the DDOL gathers. The DDOL rejected this request, presumably because the law that authorizes the DDOL to issue subpoenas and take depositions (Section 108 of Title 19 of the Delaware Code), does not require the DDOL to give notice or any opportunity to participate to employers. Employers who are unhappy about the possibility that the DDOL may engage in unilateral investigatory activities may consider lobbying their legislators to amend the law.