Filing a Discrimination Claim – Delaware
1. What kinds of discrimination are against state law in Delaware?
Delaware law makes it illegal for an employer to discriminate on the basis of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin.
2. How do I file a discrimination claim in Delaware?
A discrimination claim can be filed with the Delaware Department of Labor (DDOL) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
The Delaware anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 4 and 14 employees (except for disability discrimination claims, which require a minimum of 15 employees), you should file with the DDOL since the EEOC enforces federal law, which only covers employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency. However, some Delaware attorneys recommend that you file with the EEOC first.
To file a claim with the DDOL, contact the nearest office. More information about filing a claim with DDOL can be found at the DDOL website.
To file a claim with the EEOC, contact your local EEOC office. More information about filing a claim with the EEOC can be found at the EEOC How to File page.
EEOC’s Philadelphia District Office
EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online. This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period. Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge. All of the EEOC offices now use the Digital Charge System. If you file on or after September 2, 2016, the Online Charge Status System is available for use. The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have Internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.
3. What are my time deadlines?
Do not delay in contacting the DDOL or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for DDOL to act on your behalf, you must file with the DDOL (or cross-file with the EEOC) within 120 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, since you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. If you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your discrimination claim with the state and federal administrative agencies.
4. What happens after I file a charge with the EEOC?
When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:
- Ask both you and the employer to take part in a mediation program
- Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
- Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction
If the EEOC decides to investigate your charge, they may interview witnesses and gather documents. Once the investigation is complete, they will let you and the employer know the result. If the EEOC decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”
How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).
5. How can I or my attorney pursue a claim in court in Delaware?
If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit. You probably will be required as to sign a release of your legal claims to resolve your case. If your case is not resolved by the DDOL or EEOC and you want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your claim. This process is called “exhaustion” of your administrative remedy. Exhaustion is not required to proceed with your state discrimination claim.
Because Delaware’s state anti-discrimination statute does not permit punitive damages (damages intended to punish the employer) allowed under federal law, many Delaware attorneys choose to file employment discrimination cases in federal court. However, Delaware law does not limit or cap the compensatory (emotional pain and suffering) damages for a discrimination claim that are capped under federal law.
The EEOC must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice. If you have received one of these EEOC letters, do not delay consulting with an attorney.
This deadline is called the “statute of limitations.” If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.
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