§ 711 — Unlawful employment practices; employer practices
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(a)Definitions. —
As used in this section:
(1) “Certifying body or organization” means an independent body or entity duly accredited to issue a formal certification that an applicant meets specific local, state, or national standards or requirements.
(2) “Licensing body or organization” means an agency, board, association, or other entity that authorizes individuals to practice a profession in the State and issues a license, certificate, permit, or other authorization to the individual which is required to legally conduct business in the State.
(3) “Regulatory body or organization” means a government agency or entity established by legislation to enforce that legislation and to set and enforce standards implementing the legislation.
(b) It is an unlawful employment practice for an employer to do any of the following:
(1) Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status.
(2) Limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual’s status as an employee because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status.
(3) a. For any employment-related purpose, fail or refuse to treat an employee or applicant for employment that the employer knows or should know is affected by pregnancy as well as the employer treats or would treat any other employee or applicant not so affected but similar in the ability or inability to work, without regard to the source of any condition affecting the other employee’s or applicant’s ability or inability to work;
b. Fail or refuse to make reasonable accommodations to the known limitations related to the pregnancy of an applicant for employment or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer;
c. Deny employment opportunities to a job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy of an employee or applicant for employment;
d. Require an applicant for employment or employee affected by pregnancy to accept an accommodation that such applicant or employee chooses not to accept, if such applicant or employee does not have a known limitation related to pregnancy or if such accommodation is unnecessary for the applicant or employee to perform the essential duties of her job;
e. Require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations related to the pregnancy of the employee; or
f. Take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy of the employee.
(c) It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status or to classify or refer for employment any individual on the basis of race, marital status, genetic information, color, religion, age, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status.
(d) It is an unlawful employment practice for a labor organization to do any of the following:
(1) Exclude or expel from its membership or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status.
(2) Limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive any individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect the individual’s status as an employee or as an applicant for employment because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status.
(3) Cause or attempt to cause an employer to discriminate against an individual in violation of this section.
(e) It is an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status in admission to or employment in any program established to provide apprenticeship or other training.
(f) It shall be an unlawful employment practice for an employer, employment agency, labor union or joint labor-management committee controlling apprenticeship or other training or retraining, including on the job training programs to intentionally collect, directly or indirectly, any genetic information concerning any employee or applicant for employment, or any member of their family, unless:
(1) It can be demonstrated that the information is job-related and consistent with business necessity; or
(2) The information or access to the information is sought in connection with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan.
(g) It is an unlawful employment practice for any employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discharge, refuse to hire or otherwise discriminate against any individual or applicant for employment or membership on the basis of such person’s race, marital status, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status or because such person has opposed any practice prohibited by this subchapter or because such person has testified, assisted or participated in any manner in an investigation, proceeding, or hearing to enforce the provisions of this subchapter.
(h) (1) It shall be an unlawful employment practice for any public employer to inquire into or consider the criminal record, criminal history, credit history, or credit score of an applicant for employment during the initial application process, up to and including the first interview.
(2) If an applicant is otherwise qualified, a public employer may inquire into or consider an applicant’s criminal record, criminal history, credit history or credit score after the completion of the first interview.
(3) A public employer may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity. The public employer shall consider the following factors in its hiring decision:
a. The nature and gravity of the offense or conduct;
b. The time that has passed since the offense or conduct and/or the completion of the sentence; and
c. The nature of the job held or sought.
(4) This subsection does not apply to any state, county or municipal police force, the Department of Correction, the Department of Justice, the Office of Defense Services, the courts, or any position where federal or state statute requires or expressly permits the consideration of an applicant’s criminal history.
(i) It shall be an unlawful employment practice for an employer to do any of the following:
(1) a. Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because the individual was the victim of domestic violence, a sexual offense, or stalking.
b. Fail or refuse to make reasonable accommodations to the limitations known to the employer and related to domestic violence, a sexual offense, or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer.
c. For purposes of paragraph (i)(1) of this section, “reasonable accommodations” means making reasonable changes in the workplace, including reasonable changes in the schedules or duties of the job in question that would accommodate the person who was the victim of domestic violence, a sexual offense, or stalking, enabling such person to satisfactorily perform the essential duties of the job in question. Reasonable accommodations include allowing the individual to use accrued leave to address the domestic abuse, sexual offense, or stalking.
(2) Discharge or discipline an individual who is a victim of a crime or a representative of a victim because the individual participated in the preparation for or attended proceedings under § 9409(a) of Title 11.
(j) It shall be an unlawful employment practice for an employer to:
(1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing that employee's 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 that employee's wages.
(3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing that employee's wages or the wages of another employee.
(4) Nothing in this section creates an obligation for an employer or employee to disclose wages.
(k) It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of a reproductive health decision by the individual.
(l) (1) It shall be an unlawful employment practice for an employer to:
a. Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual’s family responsibilities, except 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.
b. Limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual’s status as an employee because of such individual’s family responsibilities, except 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.
(2) This subsection does not create any obligation for an employer to make special accommodations for an employee with family responsibilities, so long as all policies related to leave, scheduling, absenteeism, work performance, and benefits are applied in a nondiscriminatory manner.
(m) It shall be an unlawful employment practice for an employer to request or require a prospective employee’s age, date of birth, dates of attendance at or date of graduation from an educational institution on an initial employment application, provided that the provisions of this subsection shall not apply to any employer requesting or requiring such information:
(1) Based on a bona fide occupational qualification or need; or
(2) When such information is required to comply with any provision of state or federal law, or the requirements of any regulatory, licensing, or certifying body or organization.
For age to constitute “a bona fide occupational qualification or need” under this section, an employer must establish that age is an essential component of one’s ability to successfully perform a particular job and is necessary to the normal operation of the business.
(n) Notwithstanding any other provision of this subchapter:
(1) It is not an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program on the basis of religion, genetic information, age, sex (including pregnancy), sexual orientation, gender identity, military status, or national origin in those certain instances where religion, genetic information, age, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
(2) It shall not be an unlawful employment practice for a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society or if the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion.
(o) Notwithstanding any other provision of this subchapter, it is not an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, military status, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, marital status, genetic information, color, religion, age, sex (including pregnancy), sexual orientation, gender identity, military status, or national origin.
(p) Nothing contained in this subchapter as it applies to discrimination because of age or sex shall be interpreted to affect or interfere with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan, provided that such policy, system or plan is not merely a subterfuge to evade the purpose of this subchapter.
(q) (1) Nothing in this subchapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age, and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan, or any combination of such plans, of the employer of such an employee, which equals, in the aggregate, at least $44,000.
(2) In applying the retirement benefit test of paragraph (q)(1) of this section, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Secretary, United States Department of Labor, pursuant to 29 U.S.C. § 631(c)(2), so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.
(r) Nothing in this subchapter shall be interpreted to require employers to offer health, welfare, pension or other benefits to persons associated with employees on the basis as such benefits are afforded to the spouses of married employees.
(s) Nothing in this subchapter shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of state or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity.
(t) Notwithstanding any other provision of this subchapter, it is not an unlawful employment practice to make a distinction or engage in differential treatment on the basis of military status that is allowed by Delaware law or regulation, federal law or regulation, or government contract.
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