Subchapter III. Handicapped Persons Employment Protections
§ 720. Short title.
This subchapter may be cited as the "Handicapped Persons Employment Protections Act."
66 Del. Laws, c. 337, § 2.;
§ 721. Statement of purpose and interpretation.
(a) This subchapter is intended to encourage and enable qualified handicapped persons 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
handicap is contrary to the public interest and the principles of freedom and equality of opportunity. Such discrimination
also deprives many handicapped persons 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 handicapped persons
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 a nonhandicapped applicant or employee who is better qualified
than another applicant or employee who is a qualified handicapped person.
66 Del. Laws, c. 337, § 2.;
§ 722. Definitions.
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) "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.
(3) "Handicap" means any condition or characteristic that renders a person a handicapped person as defined in subdivision
(4) of this section.
(4) "Handicapped person" 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 subdivision 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: (i) Has a physical or mental impairment that does not substantially limit
major life activities but that is treated as constituting such a limitation; (ii) has a physical or mental impairment that
substantially limits major life activities because of the attitudes of others; or (iii) 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 subdivision 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 handicap.
5. "Handicapped person" 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 handicapped person" means a handicapped person who, with or without reasonable accommodation, can satisfactorily
perform the essential functions of the job in question:
a. Provided that the handicapped person shall not be held to standards of performance of essential job functions different
from other employees similarly employed; and
b. Further provided that the handicap does not create an unreasonable and demonstrable risk to the safety or health of the
handicapped person, 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 handicaps of a handicapped person 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 handicapped employee 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 handicapped person 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
handicaps 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 d. of this subdivision shall be presumed not to be an undue
hardship.
66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 572, § 1.;
§ 723. Reasonable accommodation duties.
(a) A qualified handicapped person 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 handicap, submit any necessary medical
documentation, make suggestions for such possible accommodations as are known to such handicapped person and cooperate in
any ensuing discussion and evaluation aimed at determining possible or feasible accommodations.
(b) Once a qualified handicapped person 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 handicapped person 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.;
§ 724. Unlawful employment practices.
(a) Employer prohibitions. -- It shall be an unlawful employment practice for an employer because of handicap to:
(1) Fail or refuse to hire, recruit or promote a qualified handicapped person who seeks such an employment opportunity in
good faith;
(2) Discharge or otherwise discriminate against qualified handicapped persons 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
handicapped person of employment opportunities or otherwise adversely affects the qualified handicapped person's status as
an employee;
(4) Fail or refuse to hire, recruit or promote a qualified handicapped person 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 handicapped person 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 handicapped
person because of handicap.
(c) Labor organization prohibitions. -- It shall be an unlawful employment practice for a labor organization because of handicap
to:
(1) Exclude or expel from its membership or otherwise discriminate against any qualified handicapped person;
(2) Limit, segregate or classify its membership or classify or fail to refuse to refer for employment any qualified handicapped
person 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 handicapped person in violation of this section;
or
(4) Fail to cooperate with an employer's efforts to provide reasonable accommodation to a qualified handicapped person 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 handicapped person because of handicap 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 handicapped prior to a conditional offer of employment; however, any employer may invite an applicant
to identify that applicant's self as handicapped 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 handicap, 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 handicap 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 handicap, is required of all persons offered employment for the same position regardless of handicap; 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 handicapping condition 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 handicapped person's impaired sensory, manual or speaking skills except when those skills are requirements
of the job in question.
66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1.;
§ 725. Affirmative defenses.
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 handicapped person cannot satisfactorily perform the essential functions of the job
in question;
(2) Employment of a handicapped person creates an unreasonable and demonstrable risk to the safety or health of the handicapped
person, 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.;
§ 726. Retaliation prohibited.
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.;
§ 727. Enforcement provisions and election remedies.
(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.;
§ 728. Regulations.
The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this subchapter.
Subchapter III. Handicapped Persons Employment Protections
§ 720. Short title.
This subchapter may be cited as the "Handicapped Persons Employment Protections Act."
66 Del. Laws, c. 337, § 2.;
§ 721. Statement of purpose and interpretation.
(a) This subchapter is intended to encourage and enable qualified handicapped persons 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
handicap is contrary to the public interest and the principles of freedom and equality of opportunity. Such discrimination
also deprives many handicapped persons 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 handicapped persons
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 a nonhandicapped applicant or employee who is better qualified
than another applicant or employee who is a qualified handicapped person.
66 Del. Laws, c. 337, § 2.;
§ 722. Definitions.
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) "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.
(3) "Handicap" means any condition or characteristic that renders a person a handicapped person as defined in subdivision
(4) of this section.
(4) "Handicapped person" 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 subdivision 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: (i) Has a physical or mental impairment that does not substantially limit
major life activities but that is treated as constituting such a limitation; (ii) has a physical or mental impairment that
substantially limits major life activities because of the attitudes of others; or (iii) 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 subdivision 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 handicap.
5. "Handicapped person" 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 handicapped person" means a handicapped person who, with or without reasonable accommodation, can satisfactorily
perform the essential functions of the job in question:
a. Provided that the handicapped person shall not be held to standards of performance of essential job functions different
from other employees similarly employed; and
b. Further provided that the handicap does not create an unreasonable and demonstrable risk to the safety or health of the
handicapped person, 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 handicaps of a handicapped person 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 handicapped employee 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 handicapped person 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
handicaps 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 d. of this subdivision shall be presumed not to be an undue
hardship.
66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 572, § 1.;
§ 723. Reasonable accommodation duties.
(a) A qualified handicapped person 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 handicap, submit any necessary medical
documentation, make suggestions for such possible accommodations as are known to such handicapped person and cooperate in
any ensuing discussion and evaluation aimed at determining possible or feasible accommodations.
(b) Once a qualified handicapped person 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 handicapped person 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.;
§ 724. Unlawful employment practices.
(a) Employer prohibitions. -- It shall be an unlawful employment practice for an employer because of handicap to:
(1) Fail or refuse to hire, recruit or promote a qualified handicapped person who seeks such an employment opportunity in
good faith;
(2) Discharge or otherwise discriminate against qualified handicapped persons 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
handicapped person of employment opportunities or otherwise adversely affects the qualified handicapped person's status as
an employee;
(4) Fail or refuse to hire, recruit or promote a qualified handicapped person 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 handicapped person 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 handicapped
person because of handicap.
(c) Labor organization prohibitions. -- It shall be an unlawful employment practice for a labor organization because of handicap
to:
(1) Exclude or expel from its membership or otherwise discriminate against any qualified handicapped person;
(2) Limit, segregate or classify its membership or classify or fail to refuse to refer for employment any qualified handicapped
person 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 handicapped person in violation of this section;
or
(4) Fail to cooperate with an employer's efforts to provide reasonable accommodation to a qualified handicapped person 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 handicapped person because of handicap 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 handicapped prior to a conditional offer of employment; however, any employer may invite an applicant
to identify that applicant's self as handicapped 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 handicap, 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 handicap 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 handicap, is required of all persons offered employment for the same position regardless of handicap; 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 handicapping condition 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 handicapped person's impaired sensory, manual or speaking skills except when those skills are requirements
of the job in question.
66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1.;
§ 725. Affirmative defenses.
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 handicapped person cannot satisfactorily perform the essential functions of the job
in question;
(2) Employment of a handicapped person creates an unreasonable and demonstrable risk to the safety or health of the handicapped
person, 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.;
§ 726. Retaliation prohibited.
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.;
§ 727. Enforcement provisions and election remedies.
(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.;
§ 728. Regulations.
The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this subchapter.
Subchapter III. Handicapped Persons Employment Protections
§ 720. Short title.
This subchapter may be cited as the "Handicapped Persons Employment Protections Act."
66 Del. Laws, c. 337, § 2.;
§ 721. Statement of purpose and interpretation.
(a) This subchapter is intended to encourage and enable qualified handicapped persons 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
handicap is contrary to the public interest and the principles of freedom and equality of opportunity. Such discrimination
also deprives many handicapped persons 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 handicapped persons
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 a nonhandicapped applicant or employee who is better qualified
than another applicant or employee who is a qualified handicapped person.
66 Del. Laws, c. 337, § 2.;
§ 722. Definitions.
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) "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.
(3) "Handicap" means any condition or characteristic that renders a person a handicapped person as defined in subdivision
(4) of this section.
(4) "Handicapped person" 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 subdivision 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: (i) Has a physical or mental impairment that does not substantially limit
major life activities but that is treated as constituting such a limitation; (ii) has a physical or mental impairment that
substantially limits major life activities because of the attitudes of others; or (iii) 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 subdivision 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 handicap.
5. "Handicapped person" 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 handicapped person" means a handicapped person who, with or without reasonable accommodation, can satisfactorily
perform the essential functions of the job in question:
a. Provided that the handicapped person shall not be held to standards of performance of essential job functions different
from other employees similarly employed; and
b. Further provided that the handicap does not create an unreasonable and demonstrable risk to the safety or health of the
handicapped person, 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 handicaps of a handicapped person 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 handicapped employee 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 handicapped person 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
handicaps 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 d. of this subdivision shall be presumed not to be an undue
hardship.
66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 572, § 1.;
§ 723. Reasonable accommodation duties.
(a) A qualified handicapped person 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 handicap, submit any necessary medical
documentation, make suggestions for such possible accommodations as are known to such handicapped person and cooperate in
any ensuing discussion and evaluation aimed at determining possible or feasible accommodations.
(b) Once a qualified handicapped person 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 handicapped person 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.;
§ 724. Unlawful employment practices.
(a) Employer prohibitions. -- It shall be an unlawful employment practice for an employer because of handicap to:
(1) Fail or refuse to hire, recruit or promote a qualified handicapped person who seeks such an employment opportunity in
good faith;
(2) Discharge or otherwise discriminate against qualified handicapped persons 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
handicapped person of employment opportunities or otherwise adversely affects the qualified handicapped person's status as
an employee;
(4) Fail or refuse to hire, recruit or promote a qualified handicapped person 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 handicapped person 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 handicapped
person because of handicap.
(c) Labor organization prohibitions. -- It shall be an unlawful employment practice for a labor organization because of handicap
to:
(1) Exclude or expel from its membership or otherwise discriminate against any qualified handicapped person;
(2) Limit, segregate or classify its membership or classify or fail to refuse to refer for employment any qualified handicapped
person 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 handicapped person in violation of this section;
or
(4) Fail to cooperate with an employer's efforts to provide reasonable accommodation to a qualified handicapped person 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 handicapped person because of handicap 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 handicapped prior to a conditional offer of employment; however, any employer may invite an applicant
to identify that applicant's self as handicapped 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 handicap, 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 handicap 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 handicap, is required of all persons offered employment for the same position regardless of handicap; 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 handicapping condition 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 handicapped person's impaired sensory, manual or speaking skills except when those skills are requirements
of the job in question.
66 Del. Laws, c. 337, § 2; 70 Del. Laws, c. 186, § 1.;
§ 725. Affirmative defenses.
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 handicapped person cannot satisfactorily perform the essential functions of the job
in question;
(2) Employment of a handicapped person creates an unreasonable and demonstrable risk to the safety or health of the handicapped
person, 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.;
§ 726. Retaliation prohibited.
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.;
§ 727. Enforcement provisions and election remedies.
(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.;
§ 728. Regulations.
The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this subchapter.
