TITLE 19

Labor

General Provisions

CHAPTER 7. EMPLOYMENT PRACTICES

Subchapter III. Persons With Disabilities Employment Protections


This subchapter may be cited as the "Persons With Disabilities Employment Protections Act."

66 Del. Laws, c. 337, § 2; 78 Del. Laws, c. 179, § 250.;

(a) This subchapter is intended to encourage and enable qualified persons with disabilities to engage in remunerative employment which is sought by them in good faith. The General Assembly finds that the practice of employment discrimination based on disability is contrary to the public interest and the principles of freedom and equality of opportunity. Such discrimination also deprives many persons with a disabilities of earnings necessary to maintain or contribute to a decent standard of living and necessitates their resort to public support.

(b) This subchapter shall be liberally construed to promote the full employment opportunity of qualified persons with a disabilities who seek such opportunity in good faith. Furthermore, in defining the scope or extent of any duty imposed by this subchapter, including the duty of reasonable accommodation, higher or more comprehensive obligations established by otherwise applicable federal, state or local enactments may be considered. Nothing in this subchapter, however, shall be construed to impose liability upon any employer for selecting, hiring or promoting in good faith an applicant without disability or employee who is better qualified than another applicant or employee who is a qualified person with a disability.

66 Del. Laws, c. 337, § 2; 78 Del. Laws, c. 179, §§ 251-253.;

As used in this subchapter, unless the context otherwise requires:

(1) The terms "person," "employee," "employment agency," "labor organizations," "Secretary" and "review board" are defined in § 710 of this title.

(2) "Disability" means any condition or characteristic that renders a person a person with a disability as defined in paragraph (4) of this section.

(3) "Employer" means the State or any political subdivision or board, department, commission or school district thereof and any person employing, within the State, 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

(4) "Person with a disability" means any person who:

a. Has a physical or mental impairment which substantially limits 1 or more major life activities;

b. Has a record of such an impairment; or

c. Is regarded as having such an impairment. As used in this paragraph the term:

1. "Major life activities" means functions such as, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

2. "Has a record of such impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities.

3. "Is regarded as having an impairment" means:

A. Has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation;

B. Has a physical or mental impairment that substantially limits major life activities because of the attitudes of others; or

C. Does not have a physical or mental impairment but is treated as having such an impairment.

This term is intended to be interpreted in conformity with the federal Rehabilitation Act of 1973 [29 U.S.C. § 701 et seq.], as amended, and, consistent with § 728 of this title, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment.

Enforcement of this subchapter by persons qualifying for protection solely under this paragraph (4)c. of this section shall be deferred until the issuance of the Secretary's final regulation.

4. "Substantially limits" means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining or advancing in employment because of a disability.

5. "Person with a disability" shall not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

(5) "Qualified person with a disability" means a person with a disability who, with or without reasonable accommodation, can satisfactorily perform the essential functions of the job in question:

a. Provided that the person with a disability shall not be held to standards of performance of essential job functions different from other employees similarly employed; and

b. Further provided that the disability does not create an unreasonable and demonstrable risk to the safety or health of the person with a disability, other employees, the employer's customers or the public.

(6) "Reasonable accommodation" means making reasonable changes in the work place, including, but not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes in the schedules or duties of the job in question that would accommodate the known disability of a person with a disability by enabling such person to satisfactorily perform the essential duties of the job in question; provided that "reasonable accommodation," unless otherwise prescribed by applicable law, does not require that an employer:

a. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing aids or prostheses, except under the same terms and conditions as such items are provided to the employer's employees generally;

b. Reassign duties of the job in question to other employees without assigning to the employee with a disability duties that would compensate for those reassigned;

c. Reassign duties of the job in question to 1 or more other employees where such reassignment would significantly increase the skill, effort or responsibility required of such other employees from that required prior to the change in duties;

d. Make changes to accommodate a person with a disability where:

1. For a new employee the cost of such changes would exceed 5 percent of the annual salary or annualized hourly wage of the job in question; or

2. For an existing employee the total cost of the changes would bring the total cost of changes made to accommodate the employee's disabilities since the employee's initial acceptance of employment with the employer to greater than 5 percent of the employee's current salary or current annualized hourly wage; or

e. Make any changes that would impose on the employer an undue hardship, provided that the costs of less than 5 percent of an employee's salary or annualized wage as determined in paragraph (6)d. of this section shall be presumed not to be an undue hardship.

66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 572, § 1; 78 Del. Laws, c. 179, §§ 254-260.;

As used in this subchapter, unless the context otherwise requires:

(1) The terms "person," "employee," "employment agency," "labor organizations," "Secretary" and "review board" are defined in § 710 of this title.

(2) "Disability" means any condition or characteristic that renders a person a person with a disability as defined in paragraph (4) of this section.

(3) "Employer" means a person qualifying as an employer under § 710 of this title.

(4) "Person with a disability" means any person who:

a. Has a physical or mental impairment which substantially limits 1 or more major life activities;

b. Has a record of such an impairment; or

c. Is regarded as having such an impairment. As used in this paragraph the term:

1. "Major life activities" means functions such as, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

2. "Has a record of such impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities.

3. "Is regarded as having an impairment" means:

A. Has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation;

B. Has a physical or mental impairment that substantially limits major life activities because of the attitudes of others; or

C. Does not have a physical or mental impairment but is treated as having such an impairment.

This term is intended to be interpreted in conformity with the federal Rehabilitation Act of 1973 [29 U.S.C. § 701 et seq.], as amended, and, consistent with § 728 of this title, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment.

Enforcement of this subchapter by persons qualifying for protection solely under this paragraph (4)c. of this section shall be deferred until the issuance of the Secretary's final regulation.

4. "Substantially limits" means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining or advancing in employment because of a disability.

5. "Person with a disability" shall not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

(5) "Qualified person with a disability" means a person with a disability who, with or without reasonable accommodation, can satisfactorily perform the essential functions of the job in question:

a. Provided that the person with a disability shall not be held to standards of performance of essential job functions different from other employees similarly employed; and

b. Further provided that the disability does not create an unreasonable and demonstrable risk to the safety or health of the person with a disability, other employees, the employer's customers or the public.

(6) "Reasonable accommodation" means making reasonable changes in the work place, including, but not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes in the schedules or duties of the job in question that would accommodate the known disability of a person with a disability by enabling such person to satisfactorily perform the essential duties of the job in question; provided that "reasonable accommodation," unless otherwise prescribed by applicable law, does not require that an employer:

a. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing aids or prostheses, except under the same terms and conditions as such items are provided to the employer's employees generally;

b. Reassign duties of the job in question to other employees without assigning to the employee with a disability duties that would compensate for those reassigned;

c. Reassign duties of the job in question to 1 or more other employees where such reassignment would significantly increase the skill, effort or responsibility required of such other employees from that required prior to the change in duties;

d. Make changes to accommodate a person with a disability where:

1. For a new employee the cost of such changes would exceed 5 percent of the annual salary or annualized hourly wage of the job in question; or

2. For an existing employee the total cost of the changes would bring the total cost of changes made to accommodate the employee's disabilities since the employee's initial acceptance of employment with the employer to greater than 5 percent of the employee's current salary or current annualized hourly wage; or

e. Make any changes that would impose on the employer an undue hardship, provided that the costs of less than 5 percent of an employee's salary or annualized wage as determined in paragraph (6)d. of this section shall be presumed not to be an undue hardship.

66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 572, § 1; 78 Del. Laws, c. 179, §§ 254-260; 79 Del. Laws, c. 381, § 1.;

(a) A qualified person with a disability requesting a reasonable accommodation in a good-faith effort to seek an employment opportunity must apprise the employer, employment agency or labor organization of the person's disability, submit any necessary medical documentation, make suggestions for such possible accommodations as are known to such person with a disability and cooperate in any ensuing discussion and evaluation aimed at determining possible or feasible accommodations.

(b) Once a qualified person with a disability has requested an accommodation, or if a potential accommodation is obvious in the circumstances, an employer, employment agency or labor organization shall investigate whether there are reasonable accommodations that can be made and make reasonable accommodations as defined in § 722(6) of this title. If affirmatively requested in writing by the employer, employment agency or labor organization, the person with a disability may be required to accept the employment opportunity in writing as a precondition to the initiation of such investigation.

66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, §§ 261, 262.;

(a) Employer prohibitions. — It shall be an unlawful employment practice for an employer because of disability to:

(1) Fail or refuse to hire, recruit or promote a qualified person with a disability who seeks such an employment opportunity in good faith;

(2) Discharge or otherwise discriminate against qualified persons with disabilities with respect to compensation, terms, conditions or privileges of employment;

(3) Limit, segregate or classify an employee or applicant for employment in a way which deprives or tends to deprive a qualified person with a disability of employment opportunities or otherwise adversely affects the status as an employee of the qualified person with a disability;

(4) Fail or refuse to hire, recruit or promote a qualified person with a disability who seeks such an employment opportunity in good faith on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job; or

(5) Discharge or take other discriminatory action against a qualified person with disability on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job.

(b) Employment agency prohibitions. — It shall be an unlawful employment practice for an employment agency to refuse or fail to accept, register, classify properly, refer for employment or otherwise to discriminate against a qualified person with a disability because of disability.

(c) Labor organization prohibitions. — It shall be an unlawful employment practice for a labor organization because of disability to:

(1) Exclude or expel from its membership or otherwise discriminate against any qualified person with a disability;

(2) Limit, segregate or classify its membership or classify or fail to refuse to refer for employment any qualified person with a disability in any way which would deprive or tend to deprive any such person of employment opportunities or would limit such employment opportunities or otherwise adversely affect such person's status as an employee or an applicant for employment;

(3) Cause or attempt to cause an employer to discriminate against a qualified person with a disability in violation of this section; or

(4) Fail to cooperate with an employer's efforts to provide reasonable accommodation to a qualified person with a disability to the extent it controls job structure and other employment conditions.

(d) Training program prohibitions. — It shall be 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 discriminate against any qualified person with a disability because of disability in admission to or employment in any program established to provide apprenticeship or other training.

(e) Other prohibitions.

(1) It shall be an unlawful employment practice for an employer or employment agency to require an applicant to identify the applicant's self as a person with a disability prior to a conditional offer of employment; however, any employer may invite an applicant to identify that applicant's self as a person with a disability in order to act affirmatively on that applicant's behalf.

(2) It shall be an unlawful employment practice for an employer, labor organization or employment agency to fail to meet the duties imposed on them by § 723(b) of this title.

(f) Exceptions. — It shall not be considered a violation of this section for an employer, employment agency or labor organization:

(1) To make an employment decision on the basis of state and federal laws or regulations imposing physical, mental, health or educational job requirements;

(2) To make preemployment or prepromotional inquiries which are directly related to an applicant's ability to perform essential job-related functions;

(3) To terminate or change the employment status of any person who is unable to adequately perform that person's own essential job functions, or to discriminate among persons on the basis of competence or performance in essential job functions if the employer, employment agency or labor organization has complied with § 723(b) of this title;

(4) To require or request a person to undergo a medical examination, which may include a medical history, for the purpose of determining the person's ability or capacity to safely and satisfactorily perform the duties of available jobs for which the person is otherwise qualified, or to aid in determining possible accommodations for a disability, provided:

a. That an offer of employment has been made on the condition that the person meets the physical and mental requirements of the job with or without reasonable accommodation; and

b. That the examination, unless limited to determining the extent to which a person's disability would interfere with that person's own ability or capacity to safely and satisfactorily perform the duties of the job in question or the possible accommodations for a disability, is required of all persons offered employment for the same position regardless of disability; or

(5) To administer preemployment tests, provided that the tests:

a. Measure only job-related abilities;

b. Are required of all applicants for the same position unless such tests are limited to determining the extent to which a person's disability would interfere with that person's own ability to safely and satisfactorily perform the duties of the job in question or the possible accommodation of the job in question; and

c. Accurately measure the applicant's aptitude, achievement level or whatever factors they purport to measure rather than reflecting the impaired sensory, manual or speaking skills of the person with a disability except when those skills are requirements of the job in question.

66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 179, §§ 263-266.;

In defense of any action to enforce § 724 of this title a respondent may assert affirmative defenses, including, but not limited to, the following:

(1) Despite reasonable accommodation, a person with a disability cannot satisfactorily perform the essential functions of the job in question;

(2) Employment of a person with a disability creates an unreasonable and demonstrable risk to the safety or health of the person with a disability, other employees, the employer's customers or the public;

(3) Any of the enumerated exceptions to reasonable accommodation set forth in § 722(6) of this title, including undue hardship, are applicable.

66 Del. Laws, c. 337, § 2; 78 Del. Laws, c. 179, § 267.;

It shall be an unlawful employment practice for any employer to discharge, refuse to hire or otherwise discriminate against any person or applicant for employment, or any employment agency to discriminate against any person or any labor organization to discriminate against any member or applicant for membership because such person has opposed any practice prohibited by this subchapter or because such person has testified, assisted or participated in any manner in proceedings to enforce the provisions of this subchapter.

66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1.;

(a) Enforcement of this subchapter shall be in accordance with the procedures for enforcement of rights secured by subchapter II of this chapter.

(b) Enforcement of this subchapter as authorized by § 712 of this title shall be barred if the complainant has commenced federal judicial or administrative proceedings under § 503 or § 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 793 or § 794], as amended, or regulations promulgated thereunder, based upon substantially common facts. If such federal proceedings are commenced subsequent to the filing of a charge pursuant to this subchapter, any administrative and judicial proceedings authorized by § 712 of this title shall be dismissed upon application of the respondent. Provided, however, that if complainant's federal action is dismissed on jurisdictional grounds, including the lack of federal contractor status or federal program funding, the Secretary is authorized to accept a charge under § 712 of this title and waive the limitations period of § 712(d) of this title upon a finding that the complainant commenced the complainant's federal action in good faith.

66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1.;

The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this subchapter.

66 Del. Laws, c. 337, § 2.;