Under the Delaware Discrimination in Employment Act and the Handicapped Persons Employment Protections Act it is illegal to discriminate on the basis of a protected class in any aspect of employment, including but not limited to:
- hiring and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- use of company facilities;
- training and apprenticeship programs;
- fringe benefits (examples – paid time off, health insurance, etc.);
- other terms and conditions of employment.
Discriminatory practices under these laws also include:
- harassment on the basis of race, color, religion, sex, sexual orientation, national origin, disability, age, marital status or genetic information;
- retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
- employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, sexual orientation, or ethnic group, or individuals with disabilities; and
- denying employment opportunities to a person because of relation to, or association with, an individual of a particular race, religion, national origin, sexual orientation, or an individual with a disability. The Delaware Discrimination in Employment Act also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Employers are required to post notices to all employees advising them of their rights under the laws DDOL enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
OTHER DISCRIMINATORY PRACTICES
The law prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.
National Origin Discrimination
- It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
- A rule requiring that employees speak only English on the job may violate The Delaware Discrimination in Employment Act unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.
- An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.
The Delaware Discrimination in Employment Act's broad prohibitions against sex discrimination specifically cover:
- Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The “hostile environment” standard also applies to harassment on the bases of race, color, sexual orientation, national origin, religion, age, disability, marital status and genetic information.)
- Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
Additional rights are available to parents and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. For information on the FMLA, or to file an FMLA complaint, individuals should contact the nearest office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. The Wage and Hour Division is listed in most telephone directories under U.S. Government, Department of Labor or at http://www.dol.gov/whd/.
DELAWARE DISCRIMINATION IN EMPLOYMENT ACT
The DDEA's broad ban against age discrimination also specifically prohibits:
- statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
- discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
- denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
HANDICAPPED PERSONS EMPLOYMENT PROTECTION ACT
The HPEPA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important HPEPA definitions to know who is protected by the law and what constitutes illegal discrimination:
Individual with a Disability An individual with a disability under the HPEPA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.
Qualified Individual with a Disability A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.
Reasonable Accommodation Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.
Undue Hardship An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.
Prohibited Inquiries and Examinations Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.
Drug and Alcohol Use Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.
You may also be interested in:
- How to File a Charge of Employment Discrimination
- DDOL's Charge Processing Procedures
- Mediation at DDOL
- DDOL Investigations - What an Employer Should Know