Delaware — Workplace Discrimination

The Delaware Discrimination in Employment Act (DDEA) prohibits workplace discrimination and is codified at Del. Code Ann. tit. 19, §§ 710–718. The statute applies only to employers with four or more employees within Delaware at the time of the alleged violation—a crucial statutory threshold for coverage. This means that businesses with three or fewer employees are not subject to the DDEA's requirements. (Sole proprietors and tiny employers take note: if your headcount is below four, the DDEA does not apply.)

"Employer" is defined by Del. Code Ann. tit. 19, § 710(7) as "any person employing 4 or more employees within the State at the time of the alleged violation" and includes the State, its political subdivisions, labor organizations, and employment agencies. The Delaware Department of Labor, Division of Industrial Affairs, Office of Anti-Discrimination, is responsible for enforcement.

For employers between 4 and 14 employees—a group not covered by analogous federal protections under Title VII (which requires 15+ employees)—Delaware law is often the only affirmative source of anti-discrimination protection for employees. Large employers (15 or more employees) must comply with both Delaware and federal anti-discrimination requirements.

Source: Del. Code Ann. tit. 19, § 710(7)

Under Del. Code Title 19, § 711(b)(1), it is unlawful for an employer to discriminate with respect to compensation, terms, conditions, or privileges of employment because of an individual's race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status. Section 711(b)(1a) separately prohibits discrimination based on family responsibilities, except with respect to the employer's attendance and absenteeism standards not protected by other law. Disability discrimination is covered under the Persons With Disabilities Employment Protections Act, Del. Code Title 19, §§ 720–728.

Source: Del. Code Ann. tit. 19, § 711

Delaware requires administrative exhaustion before a discrimination lawsuit may be filed. Under Del. Code Title 19, § 712(b), the Department of Labor's administrative process "shall afford the sole remedy for claims alleging a violation of this chapter to the exclusion of all other remedies." A charging party may file a civil action in Superior Court only after the Department terminates the administrative process and issues a Delaware Right to Sue Notice.

300-day charge-filing deadline

Any person claiming to be aggrieved by a violation of the Discrimination in Employment Act must file a charge of discrimination within 300 days of the alleged unlawful employment practice or its discovery. The charge must set forth a concise statement of facts, in writing, verified and signed by the charging party. This 300-day statute of limitations is measured from the date of the discriminatory act or, if the act was not immediately apparent, from the date the charging party discovered the violation. Del. Code Title 19, § 712(c)(1) establishes this requirement as a jurisdictional prerequisite to any later court action.

Charges are filed with the Delaware Department of Labor, Office of Anti-Discrimination. Delaware maintains a work-sharing agreement with the federal Equal Employment Opportunity Commission (EEOC), which permits dual filing — a charge filed with one agency may be cross-filed with the other to preserve both state and federal claims. For employers with 4 to 14 employees (below the Title VII 15-employee threshold), filing with the Delaware Department of Labor is essential because the EEOC lacks jurisdiction over such employers under federal law, though the state Discrimination in Employment Act covers them.

90-day Right to Sue deadline

After the Department concludes its investigation, mediation, or conciliation process, it issues a Delaware Right to Sue Notice acknowledging termination of the administrative remedies. The charging party may then bring a civil action in Delaware Superior Court, but must do so within 90 days of receiving the Delaware Right to Sue Notice or within 90 days of receiving a federal Right to Sue Notice from the EEOC, whichever is later. Del. Code Title 19, § 714(b) imposes this 90-day suit-filing window as a second critical deadline. Missing this deadline typically bars the lawsuit.

Election of remedies

Section 714(c) requires the charging party to elect either a Delaware state-court forum (Superior Court) or a federal forum to prosecute the employment discrimination claim. A charging party is barred by this election-of-remedies provision from filing cases in both Superior Court and federal court. If the charging party files in both forums, the employer may move to dismiss the Superior Court action under this provision.

Source: Del. Code Ann. tit. 19, § 712 Source: Del. Code Ann. tit. 19, § 714

A prevailing claimant under the Delaware Discrimination in Employment Act (DDEA) may recover a range of remedies expressly outlined in Del. Code Ann. tit. 19, § 715:

Equitable relief (hiring, reinstatement, promotion, other): The court may order an employer found to have engaged in unlawful employment practices to hire, reinstate, or promote the employee, or grant other equitable relief as appropriate. This relief is subject to the feasibility of such action according to the circumstances of each case. (§ 715(a)(1))

Monetary damages:

• Back pay: The claimant is eligible for back pay with interest, calculated from the date of the unlawful employment practice. Interim earnings or amounts earnable with reasonable diligence are deducted from the award. (§ 715(a)(2))
• Compensatory damages: Compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life may be awarded, following the structure of federal Title VII remedies. (§ 715(a)(3))
• Punitive damages: If the employer acted with malice or reckless indifference to the claimant's federally or state-protected rights, punitive damages may be assessed. (§ 715(a)(3))

Attorney’s fees and costs: The court may allow the prevailing party to recover reasonable attorney's fees and costs as a part of the judgment. (§ 715(a)(4))

Damages caps: The total amount of compensatory and punitive damages for each complainant is capped, based on the employer’s size:

• 4–14 employees: $50,000
• 15–100 employees: $100,000
• 101–200 employees: $200,000
• 201 or more employees: $300,000

Back pay and interest are not subject to these caps. (§ 715(a)(3))

The statute clarifies that remedies available under this section may include those authorized by Title VII of the Civil Rights Act of 1964, except for attorney’s fees and costs, which are as specifically provided in § 715. The court exercises discretion in determining the appropriate relief, with remedies intended to make the claimant whole consistent with statutory limits.

Source: Del. Code Ann. tit. 19, § 715

Delaware law defines the protected age group for workplace age discrimination as individuals who are 40 years old or older. The Delaware Discrimination in Employment Act adopts this threshold expressly in Del. Code Ann. tit. 19, § 710(1), which provides that “age” means “the age of 40 or more years.” This minimum age for protection matches the federal standard under the Age Discrimination in Employment Act (ADEA), but Delaware’s rule stands on its own statutory wording, not by reference to federal law.

Practically, an employee or applicant under 40 has no claim for age discrimination under Delaware law, regardless of the age-related circumstances. Only those who have reached their 40th birthday at the time of the alleged adverse action can bring an age-based claim under the state statute. The state law is silent about age discrimination protection for those under 40; it neither provides for nor bars a claim for younger workers, as the express text applies only to “40 or more.”

The Delaware statute does not address whether favoring one group over another within the protected over-40 population is actionable—the law simply sets a bright-line at age 40, and further interpretive questions would turn on case law or agency enforcement not specified in the statutory text.

Source: Del. Code Ann. tit. 19, § 710(1)

Delaware law designates "reproductive health decision" as a distinct protected characteristic under its anti-discrimination statutes. This protection stands alongside — but separate from — safeguards based on sex, pregnancy, or gender identity.

Definition: Under Del. Code Ann. tit. 19, § 710(26), a "reproductive health decision" means any decision related to the use or intended use of a particular drug, device, or medical service. This expressly includes decisions about contraception, fertility control, and the planned or intended initiation or termination of a pregnancy. The statutory definition is broad, reaching any choice connected to reproductive health, whether the individual uses (or intends to use) medical products or services for these purposes or makes decisions regarding pregnancy.

Legal protection: Del. Code Ann. tit. 19, § 711(k) specifies that it is an unlawful employment practice for an employer to fail or refuse to hire, to discharge, or to otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's reproductive health decision. This means the law prohibits adverse actions — such as firing, demotion, or denial of promotion or benefits — if the motivating reason is the employee's (or applicant's) decision about contraception, fertility treatment, pregnancy, or related medical choices. The protection exists independently of the broader bars against discrimination based on sex or pregnancy status.

In summary: If an employer takes adverse action against an employee because of that employee’s personal reproductive health decisions — including use of contraception, fertility treatments, or abortion — Delaware law provides a separate cause of action beyond traditional pregnancy or sex discrimination claims.

Source: Del. Code Ann. tit. 19, § 710(26) Source: Del. Code Ann. tit. 19, § 711(k)

Delaware law explicitly prohibits employers from retaliating against employees who file discrimination charges, participate in discrimination investigations, or otherwise oppose unlawful employment practices. This protection is enshrined in several parts of the state's anti-discrimination framework:

Core anti-retaliation prohibition:

Under Del. Code Ann. tit. 19, § 711(g), it is an unlawful employment practice for any employer, labor organization, or employment agency covered by Delaware's Discrimination in Employment Act to discriminate against any individual because that individual has (1) opposed any practice made unlawful by the Act, (2) filed a charge, (3) participated in any manner in an investigation, proceeding, or hearing under the Act, or (4) aided or encouraged any other person exercising their rights under the Act. The anti-retaliation language parallels the federal rule under Title VII but operates independently, giving employees a state forum and remedy. The prohibition is broad: it applies to complaints based on any protected status covered by Delaware law—including race, color, sex, sexual orientation, gender identity, religion, national origin, age, marital status, genetic information, disability, or reproductive health decision.

Sexual harassment and retaliation:

Delaware reiterates its anti-retaliation protection within its sexual harassment statute (Del. Code Ann. tit. 19, § 711A(d)(3)), making it a specific violation for an employer to take adverse action against an employee for:

• filing a sexual harassment complaint,
• participating in an investigation or action concerning sexual harassment,
• testifying or assisting in any proceeding on sexual harassment under state law.

Any act of retaliation may give rise to a separate claim and remedies under Delaware law, including reinstatement, back pay, and compensatory/punitive damages under the available remedies discussed elsewhere in this guide.

Source: Del. Code Ann. tit. 19, § 711(g) Source: Del. Code Ann. tit. 19, § 711A(d)(3)