Delaware’s legislature and Governor have been busy bees in 2016. This post details three protections added to Delaware’s employment discrimination law in 2016, two of which become effective on December 30th (i.e., next Friday). Specifically, these laws protect employees on the basis of an employee’s (1) reproductive health decisions, (2) family responsibilities, and (3) wage discussions or disclosures. Also worth noting: each of these three provisions applies to employers who have 4 or more employees within the state at the time of an alleged violation.
Reproductive Health Decisions
Effective December 30, 2016, Delaware employers should be aware that it is an unlawful employment practice to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment (including failure/refusal to hire or discharge) because of a “reproductive health decision” by the individual. Reproductive health decision is defined as any decision “related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy.”
It’s noteworthy here that this section doesn’t limit the prohibition against discrimination to actions taken against employees; that is, applicants are protected under this definition. Nor is there language that carves out certain religious employers from this law, unlike there is for sexual orientation and gender identity under Delaware law. As a general matter, an employee’s reproductive health decisions are probably not something most employers are (or should be) interested in, but as of December 30th, employers should not use any such knowledge they may have as the basis of an adverse employment action.
Effective December 30, 2016, Delaware employers also may not engage in certain discriminatory acts based upon an employee’s “family responsibilities.” As defined in the statute, family responsibilities means an employee’s caregiving obligations “to any family member who would qualify as a covered family member” under the FMLA. This section does, however, permit employers to take certain actions “with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards.” It will be interesting to see if the Delaware Department of Labor issues any regulations or guidance to further clarify this section.
It’s also important to note that this law does not create an entitlement to leave for purposes of family responsibilities in and of itself. The law itself notes that employers are not obligated to make special accommodations for employees who may have family responsibilities. Rather, this is a non-discrimination provision, meaning the employer must apply its policies “related to leave, scheduling, absenteeism, work performance and benefits” in a manner that is not discriminatory against employees with family responsibilities. This law provides another reason for employers to audit their workplace policies and practices — and seek any needed training — on these items to ensure compliance moving forward.
Delaware employers should also note that since June 30, 2016, it has been an unlawful employment practice under state law to:
(1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing his or her wages or the wages of another employee; (2) Require an employee to sign a waiver or other document which purports to deny an employee the right to disclose or discuss his or her wages; [or] (3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing his or her wages or the wages of another employee.