On June 12, 2018 House Bill 360 (HB360) was substituted in the House by House Substitute 1(HS1). It was voted out of Committee on June 20 and the final bill was passed on July 1 by the General Assembly. The final bill that passed had an amendment that changed some of the wording, which we discuss below. This bill will take effect on January 1, 2019. In the meantime, we have broken down the most significant differences between the original bill and its substitute.
HS1 has new purpose. Literally. HS1 has added a section called purpose that lays out why the bill is being introduced. It states as follows:
“The State of Delaware is committed to ensuring that all Delawareans experience a safe and respectful workplace free of sexual harassment. Complaints of sexual harassment will be taken seriously and employers will be held accountable for sexual harassment in the workplace. It is the expectation of the Delaware General Assembly that all employers in the State of Delaware will work to create a workplace where employees are safe and treated with dignity and respect.”
HS1 is more defined. Literally. HS1 includes 10 new definitions. Among them are “applicant,” “Negative employment action,” “Supervisor,” and many others.
Speaking of definitions, the definition of “Sexual Harassment” has been expanded to include “…or retribution on the basis of rejection of such advances and requests.” What is more, HS1 has expanded the occasions for when employers are responsible for sexual harassment. More specifically, “A negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or lawsuit about the sexual harassment of an employee.”
Along that same vein, the information sheet that the Department of Labor is required to create for employers must now also include, “The legal prohibition against retaliation.” This new emphasis placed on retaliation makes HS1 much more comprehensive. If employers are just being punished when incidents of sexual harassment are reported, they may be more inclined to not report incidents or punish those who do. The reluctance to come forward for many victims is spurred by a fear of bringing about negative consequences. This practice now, officially, will have no place in Delaware workplaces.
The section on training received changes as well. In the Substitute passed on the 20th, time requirements that must be spent training for sexual harassment had decreased from two hours to, “at least 90 minutes of effective interactive training and education to employees regarding the prevention of sexual harassment.” Perhaps the most significant change that came from the final amendment to the bill that passed was that there is no set amount of time for training is listed, only that it has to happen. Also, the training now must extend to all employees, rather than, “to all supervisory employees,” as it was in HB360. It also must now place an emphasis on preventing retaliation.
The last significant change to the training section comes from how the information should be presented. In HB360, the training had to, “be presented by trainers or educators with knowledge and expertise in the prevention of harassment.” That line has been removed, and employers must now provide, “effective interactive training and education to employees regarding the prevention of sexual harassment.” While an educator is no longer required, we recommend hiring an expert to come give a presentation to employees. With this area of law changing so quickly, it is important to have someone who is well versed in the minutia.