Workplace Harassment Laws in Delaware: Rights & Remedies

Federal law prohibits workplace harassment under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e), which covers employers with 15 or more employees and prohibits harassment based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act (29 U.S.C. § 623) prohibits harassment of employees 40 and older by employers with 20 or more employees. The Americans with Disabilities Act (42 U.S.C. § 12101) prohibits harassment based on disability by covered employers. Sexual harassment is harassment based on sex under Title VII.

Under federal law, a hostile work environment exists when unwelcome conduct is sufficiently severe or pervasive that it alters the terms and conditions of employment and creates an intimidating, hostile, or offensive work environment. The conduct must be attributable to the employer, either through direct action by management or through the employer's failure to take prompt remedial action after learning of the harassment. The U.S. Equal Employment Opportunity Commission (EEOC) enforces these laws and investigates charges. Remedies include back pay, front pay, reinstatement, compensatory damages for emotional distress and harm to reputation, and in cases of intentional discrimination, punitive damages up to $300,000 for large employers, plus attorney's fees and costs. A charge must be filed with the EEOC within 180 days of the harassment in non-deferral states, but Delaware is a deferral state, so the 300-day rule applies.

Delaware Code Title 19, Section 711 prohibits employment discrimination and harassment based on race, color, religion, sex, national origin, age, disability, and sexual orientation. Delaware's protected class categories are broader than federal law in that Delaware explicitly includes sexual orientation as a protected characteristic, whereas federal Title VII does not. Delaware also includes disability harassment, which overlaps with the federal Americans with Disabilities Act.

Delaware law applies to employers with 4 or more employees, a much lower threshold than the federal requirement of 15 employees under Title VII. This means smaller Delaware employers are subject to state harassment liability even if they fall below the federal threshold. The Delaware Division of Industrial Relations (DEEOC) administers the state law and investigates charges, functioning as a dual-filing agency that also accepts and forwards charges to the EEOC.

Under Delaware law, harassment is a form of discrimination and is prohibited when it is unwelcome conduct based on a protected characteristic that is sufficiently severe or pervasive to alter the terms and conditions of employment. Employers are liable for harassment by supervisors, coworkers, and third parties if the employer knew or should have known of the conduct and failed to take prompt remedial action. Delaware has not adopted the Ellerth/Faragher affirmative defense that applies to federal cases involving supervisory harassment.

Remedies available under Delaware law include back pay, front pay, reinstatement, compensatory damages for emotional distress, physical harm, and damage to reputation, and punitive damages. Unlike some states, Delaware does not cap compensatory or punitive damages in harassment cases. Attorney's fees and costs are also recoverable if the employee prevails. A charge must be filed with the DEEOC within 300 days of the harassment.

Delaware law contains limited exceptions to harassment liability. The primary exception applies to at-will employment: an employer may still terminate an employee at will as long as the termination is not based on a protected characteristic or retaliation for reporting harassment. However, at-will status does not shield an employer from liability for allowing a hostile work environment to exist before termination.

Small employers with 3 or fewer employees are not covered by Delaware Code Title 19, Section 711, though they may still be subject to federal law if they meet the 15-employee threshold. Independent contractors are generally not covered by Delaware employment discrimination law, as they are not considered employees. Harassment claims must arise from the harassment itself; general employment disputes not involving a protected characteristic do not qualify, even if the employee was treated unfairly.

The "stray remark" exception may apply: isolated, off-hand comments that are not severe or pervasive enough to alter the terms and conditions of employment may not constitute actionable harassment. A single incident, absent unusual severity, typically does not establish a hostile work environment. Conduct that is unwelcome but not based on a protected characteristic (such as general incivility) is not unlawful harassment under Delaware law, though it may violate other workplace policies.

Employers have an affirmative defense if they can demonstrate they took prompt, remedial action upon learning of the harassment. This includes investigating complaints, taking corrective action, and preventing retaliation. However, Delaware courts do not recognize the Ellerth/Faragher affirmative defense for supervisory harassment in some contexts, making employer liability stricter. Harassment by non-supervisory coworkers requires the employer to have had actual or constructive knowledge and failed to respond adequately.

Step 1: Document the Harassment

Begin documenting immediately. Keep a written log with dates, times, locations, specific words or conduct that occurred, and names of witnesses present. Save all relevant communications: emails, text messages, chat records, or letters containing harassing content. Take screenshots if the harassment occurs online or through social media used for work purposes. Preserve voicemails and record them in writing with the date and time. Document how the harassment affected you: absences from work, medical visits, emotional distress, or reduced performance. Do not alter or doctor evidence; authenticity is critical. Store copies in a safe location outside of work (personal email, cloud storage, external drive).

Step 2: Report Internally and Exhaust Remedies

Before filing a charge, review your employee handbook for the harassment reporting and complaint procedure. Most employers have a designated HR contact, compliance officer, or anti-harassment hotline. File a written complaint with HR or the appropriate person, even if you are uncomfortable doing so. Describe the harassment clearly, include dates and times, name the harasser, and identify witnesses. Request a response and document the date you submitted the complaint. Keep a copy. If your employer has an investigation timeline, follow it and request updates. If the employer fails to respond, document this inaction. If the internal process is ineffective or you fear retaliation, you may proceed to file a charge without waiting, though attempting the internal process strengthens your position.

Step 3: File a Charge with the Delaware DEEOC

Contact the Delaware Division of Industrial Relations, Office of Labor Law Enforcement (DEEOC) at 302-761-8200 or visit https://dnrec.delaware.gov/air/labor-law-enforcement/. You may file online, by mail, or in person. Charges must be filed within 300 days of the harassment. The DEEOC charges no filing fee. Prepare the following information: your full name, address, and phone number; the employer's name, address, and size (number of employees); the date the harassment began and ended; a description of the harassing conduct and the protected characteristic involved; names of witnesses; and the names of any supervisors or managers involved. State clearly what relief you seek: back pay, front pay, damages, reinstatement, or policy change. Include the date you reported the harassment internally, if applicable. The DEEOC will issue you a charge number and copy. This is a dual-filing charge—it is automatically filed with the EEOC as well, so you do not need to file separately federally.

Step 4: The Investigation Process

After you file, the DEEOC investigates. The employer receives a copy of your charge and is given a deadline (typically 30 days) to respond with its account of events, policies, and remedial actions taken. The DEEOC may conduct interviews with you, the alleged harasser, witnesses, and supervisors. This process typically takes 60 to 180 days, depending on complexity and case load. You will be contacted for additional information if needed. Do not expect real-time updates; the DEEOC works through a queue. If the DEEOC finds cause to believe discrimination occurred, it will issue a letter of determination and attempt conciliation—a settlement discussion between you and the employer. If conciliation fails and cause is found, the DEEOC may issue a "Right to Sue" letter, allowing you to file a civil lawsuit in Delaware Superior Court. If the DEEOC finds no cause, it also issues a Right to Sue letter, and you may still pursue a lawsuit if you choose.

Step 5: Consult an Attorney

Consider consulting an employment law attorney before or immediately after filing a charge. An attorney can evaluate the strength of your case, advise on remedies available, and represent you during the DEEOC investigation and any subsequent settlement or litigation. Many employment attorneys work on contingency for harassment cases, meaning they are paid only if you recover damages. An attorney can also advise whether to attempt settlement during conciliation or proceed to litigation. If you file suit in Delaware Superior Court, you will need an attorney licensed to practice in Delaware. Delaware employment law is complex, and an attorney's guidance increases your likelihood of a favorable outcome and fair compensation.