As we should all be aware, in July 2018, the Delaware General Assembly passed, and the Governor signed, House Bill 360 (HB360), which formalized the well-established fact that sexual harassment is unlawful under Delaware state law. Here’s what we know about enforcement, six months later.
By way of refresher, HB360 is comprised of three elements. First, it codifies the definition of sexual harassment, and the pre-existing legal defenses to sexual harassment, including the federal Faragher-Ellerth defense, which says that an employer is not liable for claims of sexual harassment where it has a valid reporting and investigation procedure, and the employee fails to avail himself or herself of the internal remedies available. It is important to note that there are some differences between the language used in HB360, and the language present in other areas of the Delaware Discrimination in Employment Act, and that adopted by the EEOC and widely used by state and federal courts when analyzing and deciding discrimination and harassment cases. For example, HB360 uses the term “negative employment action” instead of the almost universally accepted “adverse employment action.”
While the Delaware Department of Labor (DDOL) has not issued any formal guidance on enforcement and implementation of HB360, they have informally indicated that they intend to construe HB360 in the same way that they have historically construed the law of sexual harassment. In other words, despite the differences in language used, we can expect that state law will continue to be analyzed in the same manner as federal prohibitions against sexual harassment.
Second, HB360 imposes a requirement that employers post an “information sheet” regarding sexual harassment, and advising employees of their rights. The information sheet must be distributed to all new employees at the time of hire, and to all existing employees within 6 months of the effective date of the statute, which yields a compliance date of July 1, 2019. A copy of the DDOL’s proposed information sheet is now available on its website.
Finally, HB360 imposes training requirements. This is the area in which the most questions remain. The training requirement applies only to employers with 50 or more employees. The method for counting employees is not set out, although we can assume that the DDOL will continue to apply the federal numerosity requirement, which requires that you have the requisite number of employees “for each working day in 20 or more weeks in the current or preceding calendar year.” However, HB360 expressly directs employers to provide training to applicants, independent contractors, and employees who are employed less than 6 months continuously. How that directive interacts with the numerosity calculation is anyone’s guess.
We can also deduce, although it is not clearly stated, that an employer must train all employees, not just supervisors, as was required under previous iterations of HB360. What that training must consist of, however, remains a mystery. The statute provides that it must be “interactive.” While the DDOL has informally indicated that—for the time being—all forms of training are acceptable, employers would do well to take a more critical view of this requirement. The purpose of the statute is to provide adequate training and avoid harassment. That goal is best achieved by truly interactive training, in a classroom format, with a knowledgeable instructor who can answer real questions about the material. An interactive webinar is an acceptable second option, especially for the training of new employees that does not coincide with your regular, bi-annual training as required under the statute.
One final consideration: while the statute does not expressly require that supervisors and subordinates be trained separately, it does mandate that supervisors have “additional” training on the “specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment.” For this and many other reasons, best practices dictate that supervisors and subordinates be trained separately. Consider the impossibility of an employee asking pointed questions about his or her rights, with a supervisor watching, especially if the supervisor in the room is the one alleged to have engaged in inappropriate behavior.
In sum, there are a host of unanswered questions about HB360, and how it will be implemented. While we wait for clarification, it is best to read the law in the most conservative light possible, and prepare for stringent implementation. Employers can look to the draft policies and training materials promulgated by the New York Department of Labor, for sample documents imposed by a more aggressive administrative agency.