Sexual Orientation Discrimination Laws in Delaware

Federal law prohibits sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), as established by the U.S. Supreme Court in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). The Court held that discrimination based on sexual orientation constitutes unlawful sex discrimination under Title VII. Title VII covers employers with 15 or more employees and prohibits discrimination in all aspects of employment: hiring, firing, compensation, job assignment, promotions, job training, and any other term, condition, or privilege of employment.

The Equal Employment Opportunity Commission (EEOC) enforces Title VII nationwide. Remedies available federally include back pay, front pay, compensatory damages for emotional distress and humiliation, punitive damages (when the employer acted with malice or reckless indifference), attorney fees, and injunctive relief requiring the employer to cease discriminatory conduct and implement corrective measures. The federal filing deadline is 180 days from the discrimination in non-deferral states, but is extended to 300 days in deferral states like Delaware that have their own civil rights agency. Federal law provides a broader remedial framework than many states but Delaware's state law operates independently and congruently.

Delaware's Discrimination in Employment Act (Title 19, Chapter 51, Section 5101) explicitly prohibits discrimination based on sexual orientation, making Delaware one of the states with clear statutory coverage predating the Bostock decision. The state law is codified at Delaware Code Title 19, Chapter 51, Sections 5101-5109. Delaware law applies to employers with 4 or more employees, creating broader coverage than the federal Title VII threshold of 15 employees. This means small Delaware employers with 4-14 employees must still comply with state law even though they fall below the federal threshold.

Delaware's sexual orientation protections are substantially similar to federal law in scope, covering all employment decisions and working conditions. However, Delaware law extends protection to employers below the federal threshold, providing remedies for workers in smaller businesses that might not be covered federally. The Delaware Human Relations Commission (DHRC) administers and enforces the state law. Under state law, the filing deadline is 300 days from the discrimination, aligning with federal deferral state procedures.

Delaware law defines "sexual orientation" to include heterosexuality, homosexuality, and bisexuality. The state statute covers not only actual sexual orientation but also perceived sexual orientation and association with individuals of a particular sexual orientation. This is significant because it protects workers who are discriminated against based on assumptions or because they associate with LGBTQ+ individuals, even if the worker is not themselves LGBTQ+.

Remedies under Delaware law include back pay from the date of the unlawful discrimination, front pay (future lost wages), compensatory damages for emotional distress, embarrassment, and loss of enjoyment of life, reinstatement or front pay in lieu of reinstatement, and reasonable attorney fees and costs. The DHRC may also issue orders requiring the employer to cease the discrimination, institute corrective action, and post notices of employee rights. Delaware does not cap compensatory damages, allowing juries to award substantial sums in egregious cases.

Delaware's sexual orientation discrimination law contains limited exceptions. The primary exception is for employers with fewer than 4 employees, who are not covered by the state Discrimination in Employment Act, though they remain subject to federal Title VII if they have 15+ employees. Religious organizations have a narrow exemption allowing them to employ individuals of a particular sexual orientation when sexual orientation is a bona fide occupational qualification reasonably necessary to the normal operation of the organization's business. However, this exemption is narrowly construed and does not exempt religious employers from all anti-discrimination requirements.

At-will employment is not a complete defense to sexual orientation discrimination. Even though Delaware recognizes at-will employment, an employer cannot use at-will doctrine to circumvent anti-discrimination laws. An employer cannot lawfully terminate an employee at-will if the real reason for termination is the employee's sexual orientation. The at-will doctrine permits termination without cause only when the termination does not violate a statutory protection.

Delaware law does not recognize a "same-sex only" defense or requirement to treat all sexual orientations identically in all respects. Instead, the law prohibits adverse employment decisions motivated by sexual orientation. An employer can enforce neutral policies (e.g., dress codes) uniformly, but cannot enforce them disparately based on sexual orientation or require different behavioral standards for LGBTQ+ employees. Harassment and hostile work environment claims based on sexual orientation are covered under the statute. Retaliation against an employee for complaining about sexual orientation discrimination, or for participating in an investigation, is prohibited and constitutes an independent violation.

Step 1: Document the Discrimination. Keep detailed records of every incident: dates, times, locations, names of witnesses, what was said or done, and how it affected your employment. If discriminatory comments were made, write them down verbatim if possible. Collect email, text, and chat messages that evidence sexual orientation discrimination. Preserve performance reviews, emails about promotions you were denied, and any written warnings or disciplinary actions. Document your job performance and any communications showing you were qualified. Take screenshots of workplace materials or policies that may evidence bias. Keep copies of job postings, hiring records, and information about who was hired instead of you. Store all documentation in a secure location outside your work email.

Step 2: File an Internal Complaint (Recommended but Not Required). Report the discrimination to your direct supervisor or, if the supervisor is the source of the discrimination, to the human resources department or a higher-level manager. Delaware law does not require internal complaint as a prerequisite to filing with the DHRC, but filing internally creates a paper trail and may prompt corrective action. Use email when possible so you have a written record. State clearly that you are reporting discrimination based on sexual orientation. Request a written response and keep a copy of your complaint. If the company has a complaint procedure, follow it. Document the company's response or lack thereof. Request that the discrimination cease and specify what you need (stop the harassment, rescind the termination, promote you, etc.). If the internal complaint is ignored or the discrimination continues, this strengthens your case with the DHRC.

Step 3: File a Charge with the Delaware Human Relations Commission. You have 300 days from the date of the discrimination to file. The DHRC is the state agency that investigates sexual orientation discrimination charges. File online at the DHRC website (dhrc.delaware.gov) or mail a charge to: Delaware Human Relations Commission, William Penn Building, 350 The Strand, Wilmington, DE 19801. Phone: (302) 577-2490. You can also file in person at this address. The charge must include: your name, address, and phone number; the employer's name, address, and phone number; the date(s) of the discrimination; a detailed description of what happened and why you believe it was based on sexual orientation; names of witnesses if known; and whether you have filed with the EEOC (if applicable). You do not need an attorney to file a charge. Provide as much detail as possible about how the discrimination affected your employment and your damages. Keep a copy of everything you submit. Upon receipt, the DHRC will assign an investigator and notify the employer of the charge.

Step 4: Participate in the DHRC Investigation. The DHRC investigator will contact you to schedule an interview. Prepare by organizing your documentation chronologically. During the interview, explain clearly what happened, using dates and specific examples. Describe how the discrimination affected you emotionally, financially, and professionally. The investigator will then contact the employer, who will provide their version of events and relevant personnel records. The DHRC may interview witnesses and request additional documents. The investigation typically takes 120 days but can extend if the case is complex. You will receive periodic updates on the investigation status. The investigator will determine whether there is probable cause that discrimination occurred. If the DHRC finds probable cause, it will attempt to facilitate a settlement. If no settlement is reached, the DHRC may issue a Right-to-Sue letter, which allows you to file a private lawsuit in Delaware state court.

Step 5: Consult an Attorney if Needed. If the DHRC finds probable cause or issues a Right-to-Sue letter, strongly consider consulting an employment law attorney. An attorney can evaluate the strength of your case, explain your options, and represent you in settlement negotiations or litigation. Most employment discrimination attorneys work on a contingency fee basis, meaning they collect a percentage of any settlement or judgment rather than charging hourly fees upfront. Consult an attorney who specializes in employment discrimination or civil rights law. If you lack resources, contact the Delaware Public Advocate's office or legal aid organizations serving Delaware workers. An attorney can file a civil lawsuit in Delaware Court of Chancery or Superior Court seeking damages for lost wages, emotional distress, punitive damages, and attorney fees.