Delaware Employment Law Blog

In July, Delaware Governor Jack Markell signed into law an amendment to Delaware’s employment-discrimination statute. The amendment prohibits discrimination based on sexual orientation. Not surprisingly, many employers are concerned about the potential for increased litigation in light of the new law. Some employers may be surprised to learn that current federal law has been used to achieve a similar level of protection. A recent decision from the federal appeals court demonstrates the extent that such protection is provided under Title VII of the Civil Rights Act (Title VII).

The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over the federal courts of Delaware, Pennsylvania, New Jersey, and the Virgin Islands, ruled in late August that a homosexual employee could proceed with his claim that he was harassed and fired because of his “effeminate behaviors.” The unanimous decision of a three-judge panel in Prowel v. Wise Business Forms, Inc., has made headlines across the country as an extension of Title VII’s sex-based discrimination provisions. Brian D. Prowel brought the claim after he was terminated by his employer after 13 years with the company. He alleges that Wise told him that he was being terminated for lack of work as part of a workforce reduction. 

According to Prowel, his termination actually was a result of “gender stereotyping.” Unlawful gender stereotyping in the workplace occurs when an employer discriminates against an individual because the individual fails to conform to a certain perception about how the gender should look and act.

Prowel claims that his coworkers called him “Rosebud” and “Princess” because he was well dressed and well groomed and did not engage in rowdy and distasteful behavior like his male colleagues. Coworkers, Prowel claims, left items such as a pink, feathered tiara and anti-gay religious pamphlets on his desk. In other words, Prowel claims that he was harassed and eventually terminated because he didn’t act “manly enough.”

Although the Prowel Rule May Be New, A Much Older Rule Still Applies

Organizations with employees in Delaware, Pennsylvania, and New Jersey should be mindful of the court’s ruling in Prowel, not because it stands for an expansion of the anti-discrimination laws, but because it strongly supports a principle that is much older than Title VII: Do unto others as you would have them do unto you. If an individual is being harassed, he will likely be able to characterize the harassment as being based on some protected characteristic. If no harassment occurs in the first place, there will be no need to split hairs over the true reason that he harassment occurred. Thus, to avoid being faced with a claim of unlawful harassment, the best practice is to strictly prohibit any kind of taunting, mockery, or from occurring in your organization’s workplace.

NASCAR has been sued for race discrimination, gender discrimination, and sexual harassment.  The plaintiff, a black female former official, seeks $225 million in damages.

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR's second-tier Nationwide Series until she was fired in October 2007. She'd been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man's sport" with women's involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don't want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

Earlier this month, USA Today reported that a University of Hawaii student had filed suit against the public university for housing dicrimination. He alleged that, although he and his partner had been granted permission previously to live in the university-subsidized family housing, that permission had been revoked because the state did not recognize same-sex marriage. The couple, therefore, did not meet the criteria necessary to qualify for family housing.

Laws that protect againt housing discrimination and employment discrimination are often passed in the same bill. But Hawaii is not one of the states that has set up its laws this way. Hawaii state law prohibits discrimination in employment decisions based on sexual orientation. It does not have a parallel law for housing discrimination, though.

As you may know, Delaware has neither. But it has not been for lack of trying. Senate Bill #141 has been proposed and passed in the State House of Representatives for several years in a row. It has been tabled each time and housed in the drawer of a legislator until it is proposed again the following year. The bill would amend the titles of the Delaware Code that deal with Employment Discrimination, Public Housing and Public Works, Equal Accommodations, and Insurance. In each of those areas, it is unlawful to use race, religion, national origin, gender, age, or other protected characteristics as the basis for granting or denying access to, for example, public housing or government contracts.

Currently, 17 states and the District of Columbia include sexual orientation in their list of protected classes for the purposes of employment discrimination. In Delaware and Pennsylvania, public employers may not consider sexual orientation but there is no equivalent law for private employers. And neither Delaware nor Pennsylvania is one of the 15 states (including D.C.) that prohibit sexual orientation in its housing laws. Both Maryland and New Jersey are included among the states that prohibit consideration of sexual orientation both in housing and employment.