Plaintiff alleged that her superior violated the Department of Public Safety’s sexual harassment policy to attempt to pursue a sexual relationship with her. At various times during plaintiff’s employment, her superior had allegedly engaged in sexually harassing behavior towards her. At a later date when plaintiff had received poor performance reviews, claimed that her supervisor made her believe he could save her job if internal investigations against her concerning the reviews did not go well. With this indication, the supervisor made sexual advances towards the plaintiff, who felt pressured into submitting to these advances for fear of losing her job. The court noted that Delaware courts have not yet adopted federal tests to determine a quid pro quo sexual harassment claim. However, it noted that based upon the Supreme Court’s interpretation, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes quid pro quo sexual harassment when ‘(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual’.” The court noted that under this test, the consequences of a rejection to such advances or requests must “be sufficiently severe as to alter the harassed employee’s compensation, terms, conditions, or privileges of employment.” The court found that the plaintiff pleaded a qui pro quo claim of sexual harassment against the defendant.
Delaware
Domestic Case Law
Schuster v. Derocili Delaware Superior Court (2001)
Here, the plaintiff was an at-will employee whose contract could be terminated by either party giving thirty days written notice. The plaintiff mainly worked for the defendant, who was the president and controlling shareholder of the company. The plaintiff alleged the defendant made sexual comments and advances towards her a few weeks after she commenced work and also touched her inappropriately. The plaintiff told the defendant his behavior made her uncomfortable but he did not stop. Subsequently, the plaintiff began recording the defendant’s conduct in a journal and rejecting his advances more forcefully. The defendant subsequently fired the plaintiff for substandard job performance. Under 19 Del. C. § 711, an employer may not discriminate against an employee based upon gender. The defendant argued that there could be no common law cause of action for employment discrimination because there was already a statutory scheme, and the plaintiff was required to abide by the specific procedures of that statute to bring such a claim. Specifically, the defendant argued that judicial review is only available after the Delaware Department of Labor Review Board hears the matter. Plaintiff based her theory on a breach of the implied covenant of good faith and fair dealing derived from the employment contract and as such, her claim did not arise directly from § 711. The court found that the plaintiff had a common law cause of action and she could bring her claim.
Richardson's Market v. Covais Delaware Superior Court (1995)
Here, the defendant employer appealed the Board’s decision that the plaintiff had good cause to walk away from her employment as she was sexually harassed and her employer failed to rectify the situation. The son of the defendant-business owner and the defendant’s manager sexually harassed the plaintiff in a verbal and physical nature. The plaintiff tried to discuss the situation with the business owner but the harassment continued. Further, she was advised by the owner that all managerial responsibilities were given to his son and that the plaintiff would have to work it out with the son. The plaintiff attempted to discuss the situation again with the owner but after waiting for fifteen or twenty minutes, she left and quit without being able to speak to him. The plaintiff sued for hostile work environment, and the court found the defendant was liable. The employer appealed, arguing that the plaintiff did not make a reasonable effort to inform it about the hostile working environment and remedy the situation. The court disagreed and affirmed the Board’s decision.
Feddiman v. State Delaware Supreme Court (1989)
Here, the defendant appealed a conviction for assault, kidnapping and rape. The defendant argued that he could not be convicted of eight separate counts of rape for one victim, as this would constitute double jeopardy. The court disagreed and affirmed the superior court’s finding that the fact that there were variations in the sexual acts, there was physical movement of the victim between acts, and there was time between each offense.
Stafford v. Nunn, 1996 WL 434514, at *1 Delaware Family Court (1996)
Brett v. Berkowitz Supreme Court of Delaware (1998)
Here, the plaintiff sued her former attorney for sexual misconduct and malpractice. Under 11 Del. C. § 601, there are criminal penalties for sexual harassment. The statute does not explicitly provide for a private right of action. Further, the plaintiff did not bring her cause of action under this statute, and instead, claimed she could bring a common law cause of action for sexual harassment. The court held that the plaintiff did not have a private cause of action under § 601; in other words, she could not bring common law private claims under that section for sexual harassment. Id. at 512-13
Konstantopoulos v. Westvaco Corp. Supreme Court of Delaware (1996)
Here, the plaintiff sued her former employer for allowing her to be subjected to sexual harassment, sexual discrimination, and sexual assault by her co-workers. The plaintiff claimed that her co-workers made sexual comments and engaged in inappropriate sexual behavior, but that she was not physically injured by the conduct. She also had no prior or subsequent contact with her co-workers outside of work. Id. at 938. The plaintiff complained to her supervisors but nothing was ever done to rectify the situation. The plaintiff subsequently elected to take a layoff from her job once the harassment continued. The defendant argued that the plaintiff had no common law right of action because any of these claims were encompassed by the Delaware Workmen’s Compensation Act (19 Del. C. § 2301). Under this Act, a plaintiff’s compensation for personal injuries is limited to compensation that is provided in the Act. The court agreed with the defendant and found that the Act did not exclude acts of a sexual nature that occurred at work, and that the plaintiff could not bring a private cause of action for sexual harassment. Id. at 939-40. Thus, any action for sexual harassment would have to be brought pursuant to 19 Del. C. § 2301.
Gallucio’s v. Kane Delaware Superior Court (1995)
Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711. The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager. She was granted maternity leave and told she could return to work to her previous schedule when physically able. Id. at *1. When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired. Id. When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside. The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule. Id. The Equal Employment Review Board found the defendant discriminated against the plaintiff. On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.” Id. However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim. The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement. Id. Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.
T.L. v. W.L. Delaware Family Court (2003)
Here, the plaintiff sought a protection order from a Delaware court. The defendant argued that a Delaware court had no jurisdiction over him, as the alleged abuse did not occur in Delaware, and he was a non-resident. Further, the plaintiff and her children were present in Delaware only for two days upon filing the petition. Id. at 508. The court noted that Delaware enacted the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, which allows courts to register and enforce valid protection orders from other states. Id. at 513. The court found that because Delaware would recognize any protection order, the wife should have more appropriately requested the order in Ohio, as the defendant’s due process rights outweighed Delaware’s interests to protect its residents from domestic violence.