Sexual Harassment Laws in Delaware: Your Rights at Work

Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, prohibits discrimination based on sex, which encompasses sexual harassment. The federal standard, established by the U.S. Equal Employment Opportunity Commission (EEOC), defines hostile work environment harassment as unwelcome conduct of a sexual nature that is severe or pervasive enough to alter the terms and conditions of employment or create an intimidating, hostile, or offensive working environment.

Federal law covers employers with 15 or more employees. Sexual harassment includes quid pro quo harassment (where employment decisions are conditioned on sexual favors) and hostile environment harassment (ongoing unwelcome sexual conduct). The EEOC enforces Title VII and can investigate complaints, attempt conciliation, and file lawsuits. Employees must file a charge with the EEOC within 180 days of the harassment (or 300 days in states with deferral agencies like Delaware).

Federal remedies include back pay, front pay, reinstatement, compensatory damages for emotional distress and lost wages, punitive damages in cases of intentional discrimination, and attorney's fees. The federal framework provides a baseline floor of protection, but state laws can and do provide stronger protections.

Delaware Code Title 19, Section 711 provides state-level protection against sexual harassment that mirrors but strengthens federal protections in key ways. The state law applies to employers with 4 or more employees, significantly lower than the federal 15-employee threshold, extending protection to more workers in smaller workplaces. Delaware law prohibits "discrimination" based on sex, which state courts and the Delaware Division of Industrial Relations have interpreted to include sexual harassment that creates a hostile work environment or constitutes quid pro quo harassment.

Delaware's definition of sexual harassment is broad and includes unwelcome sexual advances, requests for sexual favors, verbal sexual harassment (sexually suggestive jokes, comments, or insults), physical harassment of a sexual nature, and other conduct of a sexual nature that interferes with work or creates an intimidating, hostile, or offensive environment. The conduct need not result in a tangible employment action; the creation of a hostile work environment alone violates the statute.

Under Delaware Code Title 19, Section 711A (effective 2019), employers with 4 or more employees must maintain a written anti-harassment policy that covers sexual harassment, post the policy prominently, provide training to all employees, and establish a mechanism for reporting and investigating complaints. Failure to maintain required policies and procedures can result in enhanced damages.

Delaware law provides remedies including back pay, reinstatement, front pay, compensatory damages (pain and suffering, emotional distress, lost wages), and in cases of intentional or reckless conduct, punitive damages. The state also allows recovery of attorney's fees and costs. Delaware's Human Relations Law (Title 19) is enforced by the Delaware Division of Industrial Relations, Civil Rights Section, which investigates complaints and can issue right-to-sue letters allowing private lawsuits.

Sexual harassment law in Delaware contains important exceptions and limitations. First, the employer size threshold of 4 employees means very small businesses with 3 or fewer employees are not covered by state law, though they may still be covered by federal Title VII if they have 15+ employees (rare for 3-person companies). Delaware law applies to harassment based on sex, which includes sexual harassment, but does not cover harassment based solely on non-sexual conduct (though harassment based on gender stereotyping or failure to conform to gender norms may qualify as sex-based harassment).

Employers have a complete or partial defense if they can demonstrate they took prompt, remedial action upon learning of the harassment and the employee unreasonably failed to use internal complaint procedures or report channels made available by the employer. This is known as the "affirmative defense" and requires the employer to show: (1) they maintained a complaint procedure for harassment, (2) the employee knew about it or should have known, and (3) the employee failed to use it. However, if the harassment was committed by the employer or a high-level manager, or if the harassment resulted in a tangible employment action (termination, demotion), the employer's defense is significantly weakened or eliminated.

At-will employment remains the default rule in Delaware, meaning employees can be terminated for any reason that is not illegal. However, termination in retaliation for reporting sexual harassment is unlawful. Delaware Code Title 19, Section 711 explicitly prohibits retaliation against employees for reporting harassment, opposing harassment, or participating in harassment investigations. The statute of limitations for filing a civil lawsuit after receiving a right-to-sue letter from the Division of Industrial Relations is generally three years from the date of the violation, though some claims may have shorter or longer periods depending on the legal theory.

Step 1—Document the Harassment: Keep detailed records of every incident, including the date, time, location, what was said or done, who witnessed it, and how you responded. Save all relevant emails, text messages, voicemails, or written communications. Document the impact on your work and emotional state. Keep copies at home or in a personal email account separate from your work account, in case the employer deletes records or you are terminated.

Step 2—Internal Complaint Process: Report the harassment to your HR department, supervisor (if the supervisor is not the harasser), or the designated complaints officer, using your company's anti-harassment policy if one exists. Request a written acknowledgment of receipt. Delaware law requires employers with 4+ employees to maintain a complaint procedure, and using it can strengthen your legal case and give the employer a chance to stop the conduct. If the company does not stop the harassment after you report it, document the company's failure to respond and any continued incidents.

Step 3—File with the Delaware Division of Industrial Relations: You have 90 days from the date of the harassment to file a complaint with the Delaware Division of Industrial Relations, Civil Rights Section. File at: Delaware Department of Labor, Division of Industrial Relations, Civil Rights Section, 4425 North Market Street, Wilmington, DE 19802, or online at delaware.gov/labor. You will need: your name and contact information, your employer's name and address, dates of the harassment, detailed description of what occurred, names of witnesses, copies of any written evidence, and what remedy you are seeking. Filing stops the clock on the statute of limitations and triggers an investigation. The Division will investigate at no cost to you.

Step 4—Investigation and Resolution: The Division will notify the employer of your complaint and request a response. The Division's investigator may interview you, the alleged harasser, your employer, and witnesses. This process typically takes 60–90 days but can extend if the case is complex. The Division will issue findings of fact and either close the case, find probable cause of discrimination, or seek conciliation. If they find probable cause, they will attempt to negotiate a settlement. If conciliation fails, the Division may issue a right-to-sue letter, allowing you to file a civil lawsuit in Delaware Superior Court or federal court.

Step 5—When to Consult an Attorney: Contact an employment law attorney specializing in sexual harassment if: (1) the Division's investigation will take several months and you need immediate relief, (2) the harassment involves a supervisor or manager (which may eliminate the employer's affirmative defense), (3) you have been retaliated against after reporting, (4) the employer has failed to investigate or take action, or (5) you want to file a federal lawsuit simultaneously. An attorney can file a federal EEOC charge in parallel with your state complaint, preserving federal remedies and potentially expanding your recovery to include punitive damages and attorney's fees.