The anti-sexual harassment movement #MeToo was reignited last year in response to sexual harassment allegations in Hollywood. As a result, the subject of sexual harassment is now front and center on the minds of human resources professionals, and the courage to take on the giants of numerous industries (from Hollywood to D.C.) has changed the dynamic considerably.  But what does that mean for lawyers and for lawmakers?  Isn’t sexual harassment already illegal?  While the answer is, of course, “yes”, that isn’t stopping well-intentioned lawmakers from trying to pass laws enhancing those already in existence.

Delaware’s General Assembly recently passed House Bill 360, which adds requirements to the State’s discrimination law, focused solely on sexual harassment.  Among the major changes is the inclusion of the General Assembly in the definition of “Employer”.  Clearly, this is a nod to the efforts being made in D.C. to hold lawmakers accountable for their actions.  However, there are troublesome aspects of this well-intentioned effort.

The new law requires employers with four or more employees to provide all employees with an “Information Sheet” (to be created by the State Department of Labor), either upon hire or within 6 months of the effective date (January 1, 2019).  Included on the “Information Sheet” would be: the illegality of sexual harassment; a definition of sexual harassment (with examples); the legal remedies and complaint process available through the State; directions on whom to contact; and a prohibition on retaliation.  While this sounds beneficial, the Bill ignores the fact that the State already mandates that employers hang a poster (in a location easily accessible to all employees) which includes most of this information.  Employers will suffer no direct penalty if they fail to provide the written notice, but a failure to do so could be used against the employer in litigation.  The take-away for this new paperwork requirement might be to simply include the “Information Sheet” in the employer’s handbook, and ensure that employees sign an acknowledgment form when they receive the handbook.  Distribution of the “Information Sheet” may be distributed physically or electronically.

A more onerous burden on employers (those with 50 or more employees) is a mandatory training requirement.  All employees would be required to attend “interactive” sexual harassment training every two years, with additional training requirements for supervisory personnel.  Employers will have to pay their employees for attending this mandatory training.  It should be noted that the topics to be included mirror those contained on the “Information Sheet” (and the already required poster).  Another potentially troublesome addition is the inclusion of “joint employees” in the definition of “Employee,” but without a definition of this term.

Employers do have a codified affirmative defense to sexual harassment claims if they can prove: (1) that the employer exercised reasonable care to prevent and correct harassment promptly; and (2) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.  In a nutshell, employers must have proactive policies in place, reporting chains for employees who experience harassment, and an aggressive investigative process to correct the effects of alleged harassment.

No rational arguments can be made opposing the illegality of sexual harassment, or that employees and supervisors shouldn’t be properly trained to identify, prevent, and correct sexual harassment in the workplace.  But well-intentioned laws that add to the burden already faced by the business community is not the answer.  Employers with 4 or more employees need to be aware of the Information Sheet requirement, and those with 50 or more employees need to be aware of the training requirement.  Stay tuned for further guidance from the Department of Labor, and plan to update your handbooks and practices.

Questions about this or any other employement issues? Contact Kevin at kfasic@offitkurman.com

ABOUT KEVIN FASIC

kfasic@offitkurman.com | 302.351.0901

Mr. Fasic has practiced employment and construction law for over 20 years. His practice is primarily management-based, and includes discrimination claims, wage and hour issues, Davis Bacon/Prevailing Wage claims, employment agreements (including restrictive covenant issues and severance agreements), hiring and firing guidance, unemployment claims, and legislative affairs. He appears frequently before various administrative boards and agencies, as well as private dispute resolution forums. He has experience practicing before all of Delaware’s state and federal trial and appellate courts and has experience with trial and appellate matters in the state and federal courts of New Jersey and Pennsylvania. Mr. Fasic is certified by the Delaware Superior Court as both a Mediator and as an Arbitrator, and can serve in either capacity for labor/employment and construction law disputes

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