Understanding Sex/Gender Discrimination in Delaware

“The DDEA provides employees protection from unlawful employment discrimination.” (See Sadowski v. Suppi Constr., C. A. N22C-11-149 SPL, at *8-9 (Del. Super. Ct. Nov. 30, 2023).)

“Under 19 Del. C. § 712(b), the DDEA provides the sole remedy for claims alleging a violation of the [DDEA] to the exclusion of all other remedies.” (See id.)

“DDEA claims include discharging an employee or discriminating against an employee as to compensation, terms, conditions or privileges of employment based on gender.” (See id.)

“Gender discrimination [is also] a civil rights matter allegedly arising from violations of Title VII of the Civil Rights Act of 1964.” (See In re Straight Path Commc'ns Consol. Stockholder Litig., No. 2017-0486-SG, at *22 (Del. Ch. June 14, 2022).)

Filing a DDEA Violation

“The person claiming a DDEA violation must first file a charge of discrimination within 300 days of the alleged unlawful employment practice or its discovery, setting forth a concise statement of facts, in writing, verified and signed by the charging party.” (See Sadowski v. Suppi Constr., C. A. N22C-11-149 SPL, at *9 (Del. Super. Ct. Nov. 30, 2023).)

“After investigation, the [DOL] shall issue a determination of either 'reasonable cause' or 'no reasonable cause' to believe that a violation occurred or is occurring . . . All cases resulting in a 'no cause' determination will receive a corresponding Delaware Right to Sue Notice.” (See id.)

“A charging party may file a civil action in Superior Court, after exhausting the administrative remedies provided herein and receipt of a Delaware Right to Sue Notice acknowledging same.” (See id.)

Prima Facie Cause of Action for Sexual Harassment

“To establish a prima facie cause of action for a sexual harassment claim, the plaintiff must show:

1. she suffered intentional discrimination because of her sex;
2. the discrimination was severe or pervasive;
3. the discrimination detrimentally affected the plaintiff;
4. the discrimination would detrimentally affect an objectively reasonable woman; and
5. the existence of respondeat superior liability.”

(See Gary v. R.C. Fabricators, Inc., C.A. No. 11C-12-208 FSS, at *43 (Del. Super. Ct. July 30, 2014).)

“In order to survive a motion for summary judgment, plaintiff must establish all five elements.” (See id.)

Quid Pro Quo Sexual Harassment Claim

“Like the tests for determining a hostile work environment claim, Delaware courts have not yet adopted the federal tests for determining a quid pro quo sexual harassment claim.” (See Miller v. State, CIVIL ACTION No. 08C-07-231-JOH, at *26-27 (Del. Super. Ct. Apr. 6, 2011).)

“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.” (See id.)

“Under this test, the consequences for an unfavorable response by the harassed to the sexual advances must be sufficiently severe as to alter the harassed employee's compensation, terms, conditions, or privileges of employment, or to deprive or tend to deprive [him or her] of employment opportunities or otherwise adversely affect his [or her] status as an employee. Not every insult, offensive or negative comment amounts to a Title VII claim.” (See id; 42 U.S.C. § 2000e-2.)

“Additionally, objectionable conduct attributable to an employer is not always sufficient to alter an employee's terms, conditions, or privileges of employment and is thus not always sufficient to violate Title VII. However, the consequences need not be so severe that they amount to economic or tangible discrimination.” (See id.)

Legal Precedents and Case Law on Sex/Gender Discrimination

It is well settled that “sexual harassment, if unchecked, could subject an employer to liability for creating a hostile working environment under Title VII of the Civil Rights Act of 1964.” (See Ellison v. Brady (1991) 924 F.2d 872, 880; Tuttle v. Mellon Bank of Delaware (1995) 659 A.2d 786, 789 n.3.)

It is also well settled that “sex discrimination statutes have typically been interpreted as preventing employees from being treated differently on the basis of a stereotype linked to a protected status.” (See Holland v. Zarif (2002) 794 A.2d 1254, 1273; see, e.g., Drinkwater v. Union Carbide Corp.,904 F.2d 853, 862 (3d Cir. 1990) [To the extent that [the evidence] support[s] a finding that employment decisions were being made on the basis of sexual stereotypes, [that evidence] support[s] a sex discrimination claim.]

Current as of April 01, 2024 | Updated by Trellis Law Content Team

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