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Filing a Discrimination Claim – Delaware

1. What kinds of discrimination are against state law in Delaware?

Delaware law makes it illegal for an employer to discriminate on the basis of race, color, religion, age (40-70), sex (including pregnancy), marital status, or national origin.

2. How do I file a discrimination claim in Delaware?

A discrimination claim can be filed with the Delaware Department of Labor’s Office of Labor Law Enforcement (OLLE) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a work-sharing agreement, which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to cross-file the claim with the other agency.

The Delaware anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 4 and 14 employees (except for disability discrimination claims, which require a minimum of 15 employees), you should file with the OLLE, as the EEOC enforces federal law, which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency. However, some Delaware attorneys recommend that you file with the EEOC first.

To file a claim with the OLLE, contact the nearest office. More information about filing a claim with OLLE can be found at: http://www.delawareworks.com/divisions/indust

Wilmington Office
4425 North Market Street
3rd Floor
Wilmington, DE 19802
Phone: (302) 761-8200
Milford Office
13 S.W. Front Street
Suite 101
Milford, DE 19963
Phone: (302) 422-1134

To file a claim with the EEOC, contact your local EEOC office. More information about filing a claim with the EEOC can be found at http://www.eeoc.gov/facts/howtofil.html.

EEOC’s Philadelphia District Office
21 South 5th Street
4th Floor
Philadelphia, PA 19106
Phone: (215) 440-2600
TTY: (215) 440-2610

3. What are my time deadlines?

Do not delay in contacting the OLLE or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for OLLE to act on your behalf, you must file with the OLLE (or cross-file with the EEOC) within 90 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your discrimination claim with the state and federal administrative agencies.

4. How can I or my attorney pursue a claim in court in Delaware?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the OLLE or EEOC, and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your claim. This process is called exhaustion of your administrative remedy. Exhaustion is not required to proceed with your state discrimination claim.

Because Delaware’s state anti-discrimination statute does not permit punitive damages (damages intended to punish the employer) allowed under federal law, many Delaware attorneys choose to file employment discrimination cases in federal court. However, Delaware law does not limit or cap the compensatory (emotional pain and suffering) damages for a discrimination claim that are capped under federal law.

The EEOC must first issue the document known as Dismissal and Notice of Rights or Notice of Right to Sue (Form 161) before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) If you have received one of these EEOC letters, do not delay consulting with an attorney.

This deadline is called the statute of limitations. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.