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Delaware Sexual Harassment Training Law Enacted

Michael Johnson, J.D., CEO, Clear Law Institute*

September 12, 2018

Delaware has become the fifth state to pass a state statute requiring sexual harassment training, joining California, Connecticut, Maine, and New York. On August 29, 2018, Delaware Governor John Carney signed into law HB 360, which amends the Delaware Discrimination in Employment Act (DDEA). Among other things, the law, which became effective on January 1, 2019, requires certain employers to provide sexual harassment training to all employees every two years.

Who is protected by the new sexual harassment law?

The Delaware Discrimination in Employment Act applies to employers with four or more employees in the state. The new law expands the definition of “employees” who are protected from sexual harassment to include state employees, unpaid interns, applicants, joint employees, and apprentices.

Which employers must provide sexual harassment training?

The Delaware law requires employers with 50 or more employees in Delaware to provide interactive sexual harassment training for all employees. In counting the number of “employees” to meet the 50-employee requirement, employers do not need to count applicants, independent contractors, or those who are employed less than six months continuously.

Who must receive the sexual harassment training?

Employers must provide the training to all employees, including supervisors and non-supervisors. They do not need to provide the training to applicants, independent contractors, or those who are employed less than six months continuously.

Training Deadlines

All existing employees must be trained by January 1, 2020.

The training must be repeated every two years.

New employees must be trained within one year of their employment start date. New employees do not have to be trained until they have been employed continuously for six months. They must be trained again every two years after.

New supervisors must be trained within one year of becoming a supervisor. They must be trained again every two years after.

What must the training cover?

The training must be interactive and cover the following topics:

  • The illegality of sexual harassment
  • The definition of sexual harassment, using examples
  • The legal remedies and complaint process available to the employee
  • Directions on how to contact the Department of Labor
  • The legal prohibition against retaliation

In addition, supervisor training must include the specific responsibilities of a supervisor to prevent and correct sexual harassment, while addressing the legal prohibition against retaliation.

[Clear Law Institute’s online course, Preventing Harassment at Work, includes all of the required content from the Delaware sexual harassment training law.

Other Required Provisions

Information Sheet

The Delaware Department of Labor will create an information sheet providing notice to employees of their anti-harassment rights in the workplace. The information sheet will include the same five elements required in the mandatory anti-harassment employee training, as mentioned above. Delaware employers with 4 or more employees in Delaware must distribute this information sheet, physically or electronically, to existing employees and new hires.

Existing employees must receive this information sheet by July 1, 2019.

New hires, after January 1, 2019, must be provided this information sheet at the time they begin their employment.

The Delaware Department of Labor’s information sheet has not been created yet.

To be notified when the information sheet is available, please provide us your email address through our contact form.

Liability Standard

Under the DDEA, an employer can now be held responsible and liable for acts of sexual harassment of an employee if:

  1. The employer knew, or should have known, of a non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures.
  2. Harassment committed by a supervisor results in a negative employment action of an employee, including any action taken by a supervisor that negatively impacts the employment status of an employee.
  3. A negative employment action taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying or lawsuit about the sexual harassment of an employee.

A Delaware employer can avoid liability for acts of sexual harassment by a non-supervisor if they can prove that:

  1. The employer exercised reasonable care to prevent and correct any harassment promptly, and
  2. The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

For more information on Clear Law Institute’s 50-state compliant online sexual harassment training and workplace harassment training, click here. Or, please call 703-372-0550 or submit a contact form.

About the Author

Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting on harassment prevention or investigations to organizations around the world, such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School.  Read more about Michael here. 

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