§ 4500 Short title.
This chapter may be cited as the “Delaware Equal Accommodations Law.”
§ 4501 Purpose and construction.
This chapter is intended to prevent, in places of public accommodations, practices of discrimination against any person because of race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity, or national origin. This chapter shall be liberally construed to the end that the rights herein provided for all people, without regard to race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity, or national origin, may be effectively safeguarded. Furthermore, in defining the scope or extent of any duty imposed by this chapter, higher or more comprehensive obligations established by otherwise applicable federal, state, or local enactments may be considered.
6 Del. C. 1953, § 4502; 54 Del. Laws, c. 181, § 1; 58 Del. Laws, c. 133, § 1; 58 Del. Laws, c. 386, § 1; 65 Del. Laws, c. 377, § 1; 70 Del. Laws, c. 350, § 1; 75 Del. Laws, c. 356, § 8; 77 Del. Laws, c. 90, § 1; 79 Del. Laws, c. 47, § 1; 79 Del. Laws, c. 371, § 4; 81 Del. Laws, c. 440, § 1.;
§ 4502 Definitions.
As used in this chapter:
(1) “Automatic door” shall mean a door equipped with a power-operated mechanism and controls that open and close the door automatically upon receipt of a momentary actuating signal. The switch that begins the automatic cycle may be a photoelectric device, floor mat, or manual switch.
(2) “Chairperson” means the Chairperson of the State Human Relations Commission.
(3) “Commission” means the State Human Relations Commission.
(4) “Complainant” means the person who files a complaint under § 4508 of this title.
(5) “Conciliation” means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations.
(6) “Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation.
(7) “Disability’' means a physical or mental impairment which substantially limits a person’s major life activities, or being regarded as having such an impairment, but such terms do not include current, illegal use of a controlled substance as defined in § 102 of the Controlled Substance Act (21 U.S.C. § 802) or Chapter 47 of Title 16, Uniform Controlled Substance Act.
(8) “Discriminatory public accommodations practice” means an act that is unlawful under this chapter.
(9) “Division” means the Division of Human Relations.
(10) “Gender identity” means a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.
(11) “Marital status” means the legal relationship of parties as determined by the laws of marriage applicable to them or the absence of such a legal relationship.
(12) “Panel” means a group of 3 or more Commissioners appointed by the Chairperson to perform any task authorized by this chapter.
(13) “Panel chair” means that Commissioner serving on a panel who is designated by the Chairperson to serve as the Chairperson of the panel.
(14) “Place of public accommodation” means any establishment which caters to or offers goods or services or facilities to, or solicits patronage from, the general public. This definition includes state agencies, local government agencies, and state-funded agencies performing public functions. This definition includes hotels and motels catering to the transient public, but it does not apply to the sale or rental of houses, housing units, apartments, rooming houses, or other dwellings, nor to tourist homes with less than 10 rental units catering to the transient public.
(15) “Respondent” means a person who is alleged to have committed a discriminatory public accommodations practice.
(16) “Service animal” means a dog individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
(17) “Sexual orientation” exclusively means heterosexuality, homosexuality, or bisexuality.
(18) “Special Administration Fund” means the Fund created pursuant to § 3005 of Title 31 .
6 Del. C. 1953, § 4501; 54 Del. Laws, c. 181, § 1; 66 Del. Laws, c. 68, § 1; 70 Del. Laws, c. 350, § 1; 75 Del. Laws, c. 356, §§ 9, 11, 26, 28; 77 Del. Laws, c. 90, § 2; 77 Del. Laws, c. 346, § 1; 79 Del. Laws, c. 47, §§ 2, 3; 79 Del. Laws, c. 371, § 5; 81 Del. Laws, c. 440, § 2.;
§ 4503 Persons entitled to protection.
All persons within the jurisdiction of this State are entitled to the full and equal accommodations, facilities, advantages and privileges of any place of public accommodation regardless of the race, age, marital status, creed, color, sex, handicap, sexual orientation, gender identity, or national origin of such persons.
6 Del. C. 1953, § 4503; 54 Del. Laws, c. 181, § 1; 58 Del. Laws, c. 133, § 1; 58 Del. Laws, c. 386, § 1; 65 Del. Laws, c. 377, § 2; 70 Del. Laws, c. 350, § 1; 77 Del. Laws, c. 90, § 3; 79 Del. Laws, c. 47, § 4.;
§ 4504 Unlawful practices.
(a) (1) No person being the owner, lessee, proprietor, manager, director, supervisor, superintendent, agent, or employee of any place of public accommodation, may directly or indirectly refuse, withhold from, or deny to any person, on account of race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity, or national origin, any of the accommodations, facilities, advantages, or privileges thereof.
(2) A place of public accommodation may provide reasonable accommodations based on gender identity in areas of facilities where disrobing is likely, such as locker rooms or other changing facilities, which reasonable accommodations may include a separate or private place for the use of persons whose gender-related identity, appearance or expression is different from their assigned sex at birth, provided that such reasonable accommodations are not inconsistent with the gender-related identity of such persons.
(3) A place of public accommodation must permit service animals as follows:
a. An individual with a disability accompanied by a service animal in any place of public accommodation.
b. An individual training a service animal to be used by persons with disabilities accompanied by a service animal in any place of public accommodation.
(b) No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, shall directly or indirectly publish, issue, circulate, post or display any written, typewritten, mimeographed, printed or radio communications notice or advertisement to the effect that any of the accommodations, facilities, advantages and privileges of any place of public accommodation shall be refused, withheld from or denied to any person on account of race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity or national origin, or that the patronage or custom thereat of any person belonging to or purporting to be appearing to be of any particular race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity or national origin is unlawful, objectionable, or not acceptable, desired, accommodated or solicited, or that the patronage of persons of any particular race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity or national origin is preferred or is particularly welcomed, desired or solicited.
(c) It shall be unlawful to assist, induce, incite or coerce another person to commit any discriminatory public accommodations practice prohibited by subsection (a) or (b) of this section.
(d) Requirements for newly constructed places of public accommodation. — All buildings which are constructed after January 1, 2011, and intended for use as places of public accommodation (as defined in § 4502 of this title), must be equipped with an automatic door or calling device at each entrance that is intended to be a main entrance accessible by members of the general public. For purposes of this subsection, a calling device shall mean any device that allows a person with a disability to request assistance with entry meeting the following minimum specifications:
(1) The device must provide a recognizable signal inside the place of public accommodation;
(2) The device must be capable of being operated using only 1 hand or limb;
(3) The device must have at least 1 sign next to it which identifies the device and how to use it; and
(4) The device must be capable of being operated in accordance with all requirements of the Americans with Disabilities Act [42 U.S.C. § 12101 et seq.] Accessibility Guidelines.
(e) Nothing in this section shall be interpreted as an abrogation of any requirements otherwise imposed by applicable federal or state laws or regulations.
(f) A person, being the owner, lessee, proprietor, manager, director, supervisor, superintendent, agent, or employee of any place of public accommodation, may not engage in an act or practice that is unlawful under subsections (a) through (d) of this section against an individual because the individual has done 1 of the following:
(1) Opposed an act or practice that is unlawful under subsections (a) through (d) of this section.
(2) Made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce subsections (a) through (d) of this section.
6 Del. C. 1953, § 4504; 54 Del. Laws, c. 181, § 1; 58 Del. Laws, c. 133, § 1; 58 Del. Laws, c. 386, § 1; 65 Del. Laws, c. 377, § 3; 66 Del. Laws, c. 68, § 1; 70 Del. Laws, c. 350, § 1; 75 Del. Laws, c. 356, §§ 10, 28; 77 Del. Laws, c. 90, § 4; 77 Del. Laws, c. 346, §§ 2, 4; 79 Del. Laws, c. 47, § 5; 81 Del. Laws, c. 440, § 3; 82 Del. Laws, c. 209, § 1.;
§ 4505 Authority of the Commission; delegation.
(a) The State Human Relations Commission shall implement the provisions of this chapter not expressly vested in another entity.
(b) The Commission may delegate, to a panel of its members, any power, duty, or function vested in it by this chapter. No panel to which any power, duty, or function of the Commission is delegated shall consist of fewer than 3 members of the Commission.
(c) The Commission may delegate, to the Division of Human Relations, any power, duty, or function vested in it by this chapter unless the delegation is expressly prohibited. If the Commission delegates to the Division a power, duty, or function vested in it by this chapter, the delegation shall specifically state the power, duty, or function being delegated.
(d) The Commission shall not delegate its power or duty to conduct public hearings or order relief to the Division.
§ 4506 Commission’s power to adopt rules.
The Commission shall have the power in accordance with the Administrative Procedures Act in Title 29 [Chapter 101 of Title 29] to adopt rules and regulations concerning the manner in which complaints shall be investigated or other investigations pursuant to this chapter shall be conducted, the manner in which public hearings shall be conducted, the general form and content of agreements and orders provided for in this chapter and such other rules as the Commission shall consider appropriate to assist it in performing its duties and in carrying out the purposes of this chapter. Such rules and regulations shall have the force and effect of law.
§ 4507 Education and conciliation.
(a) The Commission may commence such educational activities as, in its judgment, will further the purposes of this chapter. It may hold conferences for persons in the business industry and other interested parties to acquaint them with the provisions of this chapter and its suggested means of implementing it. The Commission may issue reports on such conferences as it deems appropriate.
(b) The Division may commence such conciliatory activities in order to further the purposes of this chapter. It may call conferences of persons in the business industry and other interested parties to acquaint them with the provisions of this chapter governing conciliation and the means it employs to implement those provisions. It shall endeavor, with their advice, to develop programs of voluntary compliance and enforcement. The Division may issue reports on such conferences as it deems appropriate.
(c) When undertaking their respective duties under this section, the Commission and the Division may consult with state and local officials and other interested parties to learn the extent, if any, to which discriminatory public accommodations practices exist in the State or locality, and whether and how state or local enforcement programs might be utilized to combat such discrimination. The Commission may issue reports on such consultations as it deems appropriate.
§ 4508 Procedure on complaint.
(a) A person believing himself or herself aggrieved by a discriminatory public accommodation practice proscribed by § 4504 of this title may, by himself or herself or by his or her attorney-at-law, file with the Division a complaint in writing stating:
(1) His or her name and address;
(2) The name and location of the place of public accommodation at which the discriminatory public accommodation practice occurred, and the date, time and an explanation thereof;
(3) If known, the name and address of each respondent and, if different, the name of the owner, lessee, proprietor, manager or superintendent of the place of public accommodation; and
(4) Such other information as the Division requires.
(b) No complaint shall be filed with the Division more than 90 days after the occurrence of the alleged discriminatory public accommodation practice.
(c) Within 120 days after the complaint is filed, the Division shall investigate the complaint and endeavor to eliminate any unlawful discriminatory practice discovered through conciliation. Insofar as possible, conciliation meetings shall be held in the county where the alleged discriminatory public accommodations practice occurred. If the matter is resolved through conciliation, the parties shall enter a conciliation agreement stating the terms of the resolution of the matter. If the Division determines that the allegations in the complaint do not state a claim for which relief is available under this chapter or that the claim is not within the scope of the Division’s jurisdiction, it may petition the Commission, with notice to the complainant, to dismiss the complaint.
(d) Whenever the Division has reasonable cause to believe that a respondent has breached a conciliation agreement, the Division shall refer the matter to the Attorney General with a recommendation that a civil action be filed under § 4512 of this title for the enforcement of such agreement.
(e) If a complaint cannot be resolved through conciliation as provided in subsection (c) of this section, the Commission shall appoint a panel to hold a public hearing within 60 days after the expiration of 120-day period for investigation and conciliation. The deadlines provided in subsection (c) of this section and this subsection may be extended by the Chairperson or the Panel Chair at the request of any party or an employee of the Commission of Human Relations upon a showing of good cause.
(f) Public hearings shall be conducted in accordance with rules prescribed by the Commission. Each party may appear in person, be represented by counsel, present evidence, cross-examine witnesses and obtain the issuance of subpoenas under § 4510 of this title. The Delaware Rules of Evidence shall apply to the presentation of evidence in a public hearing as they would in an administrative hearing conducted in accordance with subchapter III of the Administrative Procedures Act in Title 29 [subchapter III of Chapter 101 of Title 29]. A record shall be kept of all public hearings, a transcript of which shall be provided at cost upon request of a party. Decisions of the panel shall be made by a majority of the members of the panel.
(g) If the panel determines that a violation of § 4504 of this title has not occurred, it shall issue an order dismissing the complaint. The panel may award reasonable attorneys’ fees, costs and expenses to the respondent pursuant to this subsection if it determines that the complaint was brought for an improper purpose, such as to harass or embarrass the respondent.
(h) If the panel determines that a violation of § 4504 of this title has occurred, it shall issue an order stating its findings of fact and conclusions of law and containing such relief as may be appropriate, including actual damages suffered by the aggrieved person “including damages caused by humiliation and embarrassment,” costs, expenses, reasonable attorneys’ fees and injunctive or other equitable relief. To vindicate the public interest, the panel may assess a civil penalty against the respondent or respondents, to be paid to the Special Administration Fund:
(1) In an amount not exceeding $5,000 for each discriminatory public accommodations practice if the respondent has not been adjudged to have committed any prior discriminatory public accommodations practice;
(2) In an amount not exceeding $15,000 for each discriminatory public accommodations practice if the respondent has been adjudged to have committed 1 other discriminatory public accommodations practice during the 5-year period ending on the date of the complaint; and
(3) In an amount not exceeding $25,000 for each discriminatory public accommodations practice if the respondent has been adjudged to have committed 2 or more discriminatory public accommodations practices during the 7-year period ending on the date of the complaint.
(i) Copies of orders entered pursuant to subsections (g) and (h) of this section shall be served personally or by registered or certified mail to each party or their counsel.
(j) If the Division concludes, at any time following the filing of a complaint, that prompt judicial action is necessary to carry out the purpose of this chapter, the Division may authorize a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint under this section. Upon receipt of such authorization, the Attorney General may elect, in the absence of a conflict of duties, to commence and maintain such an action in the Court of Chancery on behalf of the Division. If the Attorney General does not elect to pursue such an action, the Division may, with the written authorization of the Secretary of State, employ special counsel to pursue such action notwithstanding § 2507 of Title 29. The commencement of a civil action under this subsection does not affect the initiation or continuation of proceedings under this section.
(k) The Commission, by regulation, shall adopt procedures for dismissal of complaints based on lack of jurisdiction or failure to state a claim upon which relief is available under this chapter. Notwithstanding the limitation of delegation in § 4505 of this title, the Commission may authorize such dismissal by a single commissioner prior to appointment of a panel.
§ 4509 Division’s power to investigate compliance.
The Division is empowered to investigate compliance with this chapter whether or not a complaint is filed pursuant to § 4508 of this title. In furtherance of and not in limitation of this power, the Division may review practices of any place of public accommodation within this State. Investigations pursuant to this section that cannot be resolved through conciliation may be referred by the Division to the Attorney General for further proceedings pursuant to § 4512 of this title.
§ 4510 Compelling attendance of witnesses and production of documents, oaths, subpoenas.
(a) The Commission may issue subpoenas and order discovery in aid of investigations and hearings under this chapter. Such subpoenas shall be signed by the chairperson or panel chair and may be served by any sheriff, deputy sheriff, constable or any member of the Commission or employee of the Division of Human Relations and return thereof shall be made to the Commission. Such subpoenas and discovery may be ordered to the same extent and subject to the same limitations as would apply if the subpoenas or discovery were ordered or served in aid of a civil action in the Superior Court. Provided, however, that such subpoenas and discovery in aid of investigations are first to be reviewed by the Attorney General to determine whether there is reason to believe that there has been a violation of this chapter.
(b) At any public hearing, any member of the Commission may administer oaths to all witnesses who may be called before the Commission.
(c) Witnesses summoned by a subpoena under this chapter shall be entitled to the same witness and mileage fees as witnesses in proceedings in Superior Court.
(d) Where any person fails or neglects to attend and testify or answer any lawful inquiry or to produce records, documents or other evidence, if it is in such person’s power to do so, in obedience to the subpoena or other lawful order under subsection (a) of this section, the Attorney General, on behalf of the Commission, shall petition the Superior Court in the county where such person resides or conducts business for an order requiring such person to appear before the Commission to produce evidence if so ordered or to give testimony pertaining to the matter under investigation or in question. Any failure to obey such order may be punished by the Court as being in contempt of court.
(e) Criminal penalties. — (1) Any person who wilfully fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents or other evidence, if it is in such person’s power to do so, in obedience to the subpoena or other lawful order under subsection (a) of this section, shall, in each instance be fined not more than $2,500 or imprisoned not more than 1 year, or both.
(2) Any person who, with intent thereby to mislead another person in any proceeding under this chapter:
a. Makes or causes to be made any false entry or statement of fact in any report, account, record or other document produced pursuant to subpoena or other lawful order under subsection (a) of this section;
b. Wilfully neglects or fails to make or cause to be made full, true and correct entries in such reports, accounts, records or other documents; or
c. Wilfully mutilates, alters or by any other means falsifies any documentary evidence; shall in each instance be fined not more than $2,500 or imprisoned not more than 1 year, or both.
§ 4511 Judicial review.
(a) Any party aggrieved by an order for relief under § 4508 of this title granting or denying, in whole or in part, the relief sought, may obtain a review of such order in the Superior Court in the county in which the discriminatory public accommodations practice is alleged to have occurred, pursuant to the civil rules of that Court and the Administrative Procedures Act [Chapter 101 of Title 29]. Filing of the petition for review shall be not later than 30 days after the order is entered.
(b) Any party to the proceeding before the panel may intervene in the Superior Court in the appeal process.
(c) No objection not made before the panel shall be considered by the Court, unless the failure or neglect to urge such objection is excused because of extraordinary circumstances or when the interests of justice so require.
(d) If the Attorney General has not commenced a civil action within 60 days of notice of breach of a Commission order or conciliation agreement as authorized by § 4512 of this title, an aggrieved party may commence an action in the Superior Court, or Court of Chancery, or both, seeking enforcement and appropriate relief, including conversion of a Commission order conferring monetary relief to a judgment subject to execution. The Court may also award the aggrieved party reasonable costs and attorneys’ fees in connection with the enforcement action.
§ 4512 Enforcement by the Attorney General.
(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaging in a pattern of discriminatory public accommodation practices, that any person or group of persons has been denied any of the rights granted by this chapter and such denial raises an issue of general public importance or that any party to a conciliation agreement has breached such agreement, the Attorney General may commence a civil action in the Superior Court, Court of Chancery or both in any county of the State for appropriate relief including, but not limited to, equitable relief, monetary damages, reasonable attorneys’ fees, costs and expenses. To vindicate the public interest, the court may assess a civil penalty to be paid to the Special Administration Fund in an amount not exceeding $25,000 for a first violation of this section and in an amount not exceeding $50,000 for any subsequent violation of this section.
(b) When a civil action is initiated by the Attorney General pursuant to this section, no Court shall charge fees of any kind in such proceeding to the Attorney General, the Commission or any of its members.
§ 4513 Criminal jurisdiction.
The Superior Court shall have exclusive original jurisdiction over all criminal violations of this chapter.