Delaware — Workplace Discrimination

Delaware prohibits workplace discrimination under the Discrimination in Employment Act, codified at Del. Code Title 19, §§ 710–718. The Act applies to any person employing 4 or more employees within Delaware at the time of the alleged violation, including the state, political subdivisions, employment agencies, and labor organizations. The Delaware Department of Labor, Division of Industrial Affairs, Office of Anti-Discrimination enforces the Act.

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