CHAPTER 285

FORMERLY SENATE BILL NO. 293

AS AMENDED BY

SENATE AMENDMENT NOS. 1 & 4

AN ACT TO AMEND TITLE 19, DELAWARE CODE, CHAPTER 7, SUBCHAPTER 11, RELATING TO DISCRIMINATION IN EMPLOYMENT AND MAKING A SUPPLEMENTARY APPROPRIATION TO THE DEPARTMENT OF LABOR TO IMPLEMENT THIS ACT.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 19, Delaware Code, Chapter 7, Subchapter 11, is amended by repealing Sections 710, 711, 712 and 713 thereof and inserting in lieu thereof the following new sections:

§ 710. Definitions

For the purposes of this subchapter —

"Person" includes one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.

"Employer" includes the State or any political subdivision or board, department, commission or school district thereof and any person employing four or more persons within the State but except as hereinafter provided, does not include religious, fraternal, charitable or sectarian corporations or associations, except such corporations or associations supported, in whole or in part, by governmental appropriations. The term "employer" with respect to discriminatory practices based on race, color, age or national origin, includes religious, fraternal, charitable and sectarian corporations and associations employing four or more persons within the State.

"Employee" means an individual employed by an employer, but does not include (1) any individual employed in agriculture or in the domestic service of any person, (2) any individual who, as a

part of his employment, resides in the personal residence of the employer, (3) any individual employed by said individual's parents, spouse or child.

"Employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

"Labor organization" includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

"Secretary" means the Secretary of the Department of Labor or his designee.

"Age" as used in this subchapter includes only persons between the ages of 40 and 65.

"Review Board" means a board consisting of five (5) members constituted as follows: Three members appointed by the Governor, one of whom shall be designated to serve as chairman, one of the three shall be representative of the general public, one shall be representative of employers, and one shall be representative of organized labor. The remaining members shall be the Secretary of Labor or his designee and the chairman of the Human Relations Commission or his designee.

§ 711. Unlawful employment practices; employer practices

(a) It shall be an unlawful employment practice for an employer —

( I ) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, age, religion, sex, or national origin;

or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, age, religion, sex, or national origin.

(b) It shall be 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 his race, color, age, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, age, sex, or national origin.

(c) It shall be an unlawful employment practice for a labor organization —

(1) to exclude or to expel from its membership or otherwise to discriminate against any individual because of his race, color, age, religion, sex, or national origin;

(2) to 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 his status as an employee or as an applicant for employment, because of such individual's race, color, age, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) It shall be 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 his race, color, age, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

(e) Notwithstanding any other provision of this subchapter,

(1) it shall not be 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 his religion, age, sex, or national origin in those certain instances where religion, age, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (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.

() Notwithstanding any other provision of this subchapter it shall not be 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, color, age, religion, sex, or national origin, nor shall it be an unlawful employment practice for a_n employer to give and to 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, color, religion, age, sex, or national origin.

(a) Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this

subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, age, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, age, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, age, sex, or national origin in any community, State, section or other area, or in the available work force in any community, State, section or other area.

(h) 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 or 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.

§712. Enforcement provisions

(a) The Department of Labor is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in Section 711 of this title.

(b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by any authorized employee of the Department, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs has engaged in an unlawful employment practice, the Department shall serve a copy of the charge on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the "respondent") and shall make an investigation thereof. Charges shall be in writing and shall contain such information and be in such form as the Department requires. Charges shall not be made public by the Department. If the Department determines after such investigation that there is reasonable cause to believe that the charge is not true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. Such notice shall

be in writing and shall set forth the facts upon which the decision is based.

(c) If the Department determines after the investigation referred to in subsection (b) hereof, that there is reasonable cause to believe that the charge is true, the Department shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such conciliation endeavors may be made public by the Department, its officers, or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than One Thousand Dollars ($1,000) or imprisoned not more than one year, or both. The Department shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty (120) days from the filing of the charge, or where applicable under subsection (d) or (e) from the date upon which the Department is authorized to take action with respect to the charge.

(d) A charge under subsection (b) must be filed within 90 days after the alleged unlawful employment practice or 120 days after discovery thereof, whichever is the later.

(e) If the Department determines after attempting to secure voluntary compliance under subsection (c) that it is unable to secure from the respondent a conciliation agreement acceptable to the Department and to the person aggrieved, which determination shall not be reviewable in any Court, the Department shall issue and cause to be served upon the respondent a complaint stating the facts upon which the allegation of the unlawful employment practice is based, together with a notice of hearing before the Review Board or his agent at a place therein fixed not less than five (5, days after the serving of such complaint. The complaint may be amended at any reasonable time provided that the respondent has sufficient time to respond thereto. Related proceedings may be consolidated for hearing. Any employee of the Department who filed a charge in any case shall not participate in a hearing on any complaint arising out of such charge, except as a witness.

(f) A respondent shall have the right to file an answer to the complaint against him and with the leave of the Review Board, which shall be granted whenever it is reasonable and fair to do so, may amend his answer at any time. Respondents and the person aggrieved shall be parties and may appear at any stage of the proceedings, with or without counsel. The Review Board may grant such other persons a right to intervene or to file briefs, or make oral arguments as amicus curiae or for other purposes, as it considers appropriate. All testimony shall be taken under oath and shall be reduced to writing.

(g) If the Review Board finds that the respondent has engaged in an unlawful employment practice, the Review Board shall state its findings of fact in writing and shall issue and cause to be served on the respondent and the person or persons aggrieved by such unlawful employment practice an order requiring the respondent to cease and desist from such unlawful employment practice and to take such affirmative action, including reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), as will effectuate the policies of this subchapter. Provided, that interim earnings or amounts earnable with reasonable diligency by the aggrieved person or persons shall operate to reduce the back pay otherwise allowable. Such order may further require such respondent to make reports from time to time showing the extent to which he has complied with the order. If the Review Board finds that the respondent has not engaged in any unlawful employment practice, the Review Board shall state its findings of fact in writing and shall issue and cause to be served on the respondent and the person or persons alleged in the complaint to be aggrieved an order dismissing the complaint.

(h) Any complainant or any aggrieved party other than a member of the Department, respondent, or intervenor, aggrieved by an order of the Review Board, including an order dismissing a complaint, may obtain judicial review, and the Review Board may obtain an order of the Court of Chancery for enforcement of its order. The proceeding for review or enforcement is initiated by filing a petition in the Court of Chancery. Copies of the petition shall be served upon all parties of record. Within 30 days after the service of the petition upon the Review Board or its filing by the Review Board or within such further time as the court may allow,

the Review Board shall transmit to the court the original or a certified copy of the entire record upon which the order is based, including any transcript of testimony, which need not be printed. By stipulation of all parties to the review proceeding, the record may be shortened. The court may reverse or modify the order if substantial rights of the petitioner have been prejudiced because of the findings of fact of the Department are clearly erroneous in view of the reliable probative and substantial evidence on the whole record. The court shall have power to grant such temporary relief or restraining order as it deems just, and to enter an order enforcing, modifying and enforcing as modified, or setting aside in whole or in part the order of the Review Board, or remanding the case to the Department for further proceedings.

An objection not urged at a hearing shall not be considered by the court unless the failure to urge the objections is excused for good cause shown. A party may move the court to remit the case to the Review Board in the interest of justice for the purpose of adducing additional specified and material evidence and seeking findings thereon, provided he shows good cause for the failure to adduce such evidence before the Review Board.

A proceeding under this section must be initiated within 30 days after a copy of the order of the Review Board is received, unless the Department is the petitioner. If no proceeding is so initiated, the Review Board may obtain a decree of the court for enforcement of its order upon showing that a copy of the petition for enforcement was served on the respondent and that the respondent is subject to the jurisdiction of the court.

(i) After a charge has been filed and until the record has been filed in the Court of Chancery as herein provided, the proceeding may at any time be ended by agreement between the Review Board and the parties for the elimination of the alleged unlawful employment practice, approved by the Review Board and the Review Board may at any time, upon reasonable notice, modify or set aside, in whole or in part, any finding or order made or issued by it. An agreement approved by the Review Board shall be enforceable under subsection (i) and the provisions of that subsection shall be applicable to the extent appropriated to a proceeding to enforce an agreement.

(j) In any action or proceeding under this subchapter the Court in its discretion, may allow the prevailing party, other than the Review Board or the State, a reasonable attorney's fee as part of the costs, and the Review Board and the State shall be liable for costs, the same as a private person.

(k) The Superior Court of the County where the violation is alleged to have occured shall have jurisdiction to hear an appeal from any decision made by the Review Board except as provided in subsection (d) herein. Such appeal shall be on record only before the Department.

§ 713. Civil actions by the Attorney General; complaint

(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the Court of Chancery by filing with it a complaint, (1) signed by him (or in his absence the Chief Deputy Attorney General),

(2) setting forth facts pertaining to such pattern or practice, and

(3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

(b) The Court of Chancery shall have jurisdiction over proceedings brought pursuant to this section.

§ 714. Investigations; examination and copying of evidence related to unlawful employment practices

(a) In connection with any investigation of a charge filed under Section 712 of this title, the Department shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.

zation, subject to this subchapter shall, (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) per-serve such records for such periods, and (3) make such reports therefrom, as the Department shall prescribe by regulation or order, after public hearing, as reasonable, necessary or appropriate for the enforcement of this subchapter or the regulations or orders thereunder. The Department shall, by regulation, require each employer, labor organization, and joint labor-management committee subject to this subchapter which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purpose of this subchapter, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which such applications were received, and shall furnish to the Department, upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor-management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may (1) apply to the Department for an exemption from the application of such regulation or order, or (2) if such exemption is denied, bring action for relief in the Court of Chancery. If the Department or the Court, as the case may be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Department or the Court, as the case may he, may grant appropriate relief.

(c) It shall be unlawful for any officer or employee of the Department or make public in any manner whatever any information obtained by the Department pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Department who shall make public in any manner whatever any information in violation of this subsection, shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000) or imprisoned not more than one year.

§ 715. Investigatory powers; examination of witnesses; production of evidence

(a) For the purposes of any investigation of a charge filed under the authority contained in Section 712 of this title, the Department shall have authority to subpoena and examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation. The subpoenas may be issued and oaths administered by the Secretary or the Chairman of the Review Board.

(b) If the respondent named in a charge filed under § 712 of this title fails or refuses to comply with a demand of the Department for permission to examine or to copy evidence in conformity with the provisions of subsection (a) of this section, or if any person required to comply with the provisions of § 714 (a) and (b) of this title fails or retuses to do so, or it any person fails or refuses to comply with a demand by the Department or Review Board to give testimony under oath, the Superior Court of the County in which the person is found, resides, or transacts business, shall upon application of the Department or Review Board have jurisdiction to issue to such person an order requiring him to comply with the provisions of § 714 (a) or (b) of this title or to comply with the demand of the Department or Review Board, but the attendance of a witness may not be required outside the State where he is found, resides, or transacts business, and the production of evidence may not be required outside the State where such evidence is kept.

(c) Any subpoena, process, or order of the Department or Review Board or any notice or paper requiring service, may be served by any Sheriff, Deputy Sheriff, Constable, or any employee of the Department, and return thereof made to the Department or Review Board. Such officer shall receive the same fees as are provided by law for like service in civil actions, except that if service is made by an employee of the Department, he shall not receive any fee, but shall be paid his actual expenses.

(d) Within twenty (20) days after the service upon any person charged under §712 of this title of a demand by the Department or Review Board for the production of documentary evidence or for permission to examine or to copy evidence in conformity with the provisions of §714 (a) of this title, such

person may file in the Superior Court of the County in which he resides, is found, or transacts business, and serve upon the Review Board either by personal service upon the Review Board or by registered mail, a petition for an order of such Court modifying or setting aside such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and ordered by the Court shall not run during the pendency of such petition in the Court. Such petition shall specify each ground upon which the petition relies in seeking such relief, and may be based upon any failure of such demand to comply with the provisions of this subchapter or with the limitations generally applicable to compulsory process or upon any constitutional or other legal right or privilege of such person. No objection which is not raised by such a petition may be used in defense to a proceeding initiated by the Review Board under subsection (b) of this section for enforcement of such a demand unless such proceeding is commenced by the Review Board prior to the expiration of the twenty (20) day period, or unless the Court determines that the defendant could not reasonably have been aware of the availability of such ground of objection.

(e) In any proceeding brought by the Department under subsection (b) of this section, except as provided in subsection (c) of this section, the defendant may petition the Court for an order modifying or setting aside the demand of the Review Board.

(f) If any person, in proceedings before the Review Board, disobeys or resists any lawful order or process, or disobeys or resists any order issued pursuant to §712 (f) of this subchapter, or misbehaves during a hearing or so near the place thereof as to obstruct the hearing, neglects to produce after having been ordered to do so, any pertinent document, or refuses to appear after having been subpoenaed, or upon appearing, refuses to take the oath as a witness, or after having taken the oath, refuses to be examined according to law or refused to obey or comply with any order of the Review Board, the Review Board shall certify the facts under the hand of the Secretary to any Judge of the Superior Court, who shall thereupon hear the evidence as to the acts complained of. If the evidence so warrants, the Judge shall punish such person in the same manner and to the same extent as for a contempt committed before the Superior Court, or shall commit such person upon the same conditions as if the doing of the

forbidden act had occurred with reference to the process of, or in the presence of the Superior Court.

§716. Posting of notices; penalties

(a) Every employer, employment agency, and labor organization, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment and members are customarily posted, a notice to be prepared or approved by the Department setting forth excerpt from, or summaries, of the pertinent provisions of this subchapter and information pertinent to the filing of a complaint.

(b) A willful violation of this section shall be punishable by a fine of not more than One Hundred Dollars ($100.00) for each separate offense.

§ 717. Veterans' special rights or preference

Nothing contained in the subchapter shall be construed to repeal or modify any State or local law creating special rights or preference for veterans.

§ 718. Criminal jurisdiction in Superior Court

The Superior Court shall have jurisdiction over any violation of any criminal provision of this subchapter.

Section 2. Any action, proceeding or prosecution brought pursuant to the sections of Title 19 repealed herein shall remain in full force and effect until any action, case, prosecution, trial or any other legal proceeding in progress under or pursuant to the previous wording of the sections amended by this Act, no matter what the stage of the proceeding, shall be preserved and shall not become illegal or terminated upon the effective date of this Act. For purposes of such proceedings in progress the prior law shall remain in full force and effect.

Section 3. If any section, subsection, phrase, word or words or the application thereof to any circumstance or person shall be declared unconstitutional by any State or Federal Court, then the remainder of this Act or its application which can be given effect

without the invalid provision or application shall remain in full force and effect.

Section 4. The sum of $10,000 is appropriated for the Fiscal Year ending June 30, 1972, to the Department of Labor to implement this Act. This appropriation shall be considered a supplementary appropriation and the funds hereby appropriated shall be paid out of the General Fund. of the State Treasury from funds not otherwise appropriated. Any such funds remaining unexpended as of June 30, 1972, shall revert to the General Fund of the State Treasury.

Approved July 15, 1971.