An amendment to the Delaware Discrimination in Employment Act (DDEA) has taken effect and it opens employers up to new discrimination claims by Delaware employees.
The DDEA now prohibits discrimination by an employer “because of a reproductive health decision” by an employee. The Act defines “reproductive health decision” 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.” Therefore, any employment decision related to infertility treatments or procedures is now expressly prohibited by the DDEA. This is consistent with federal guidance, as the EEOC had previously interpreted Title VII to prohibit employment decisions related to infertility or use of contraceptives, reasoning that, for example, employment decisions related to fertility treatments can create an inference of sex discrimination because “surgical impregnation is intrinsically tied to a woman’s childbearing capacity.” EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 25, 2015).
The DDEA now similarly prohibits discrimination due to an employee’s “family responsibilities” except with respect to attendance and absentee standards that are not protected by other laws, and if the employee’s performance at work meets satisfactory standards. “Family responsibilities” means the “obligations of an employee to care for any family member who would qualify as a covered family member” under the FMLA. What is less clear is how the Delaware Human Relations Commission will determine whether an employee’s performance “meets satisfactory standards,” and who the Commission will look to for proof of “satisfactory performance.”
The DDEA (available here) went into effect on December 30, 2016.
