Protected classes. The Delaware Discrimination in Employment Act prohibits employers from making inquiries of prospective employees that state or imply any limitation or discrimination on the basis of race, marital status, genetic information, color, age (40 and over), religion, sex (including pregnancy), sexual orientation, gender identity, or national origin (Del. Code tit. 19, § 710 et seq.). The Act also prohibits employers from discriminating because an individual was the victim of domestic violence, a sexual offense, or stalking. The Act covers employers with four or more employees, including public employers.
The term “race” is defined to include traits historically associated with race, including hair texture and a protective hairstyle. A “protective hairstyle” includes braids, locks, and twists. The act covers employers with four or more employees, including employment agencies and labor unions.
Bona fide occupational qualification (BFOQ). It is permissible to hire an individual based on one of the protected characteristics if that characteristic constitutes a reasonable BFOQ for the job in question. A BFOQ is a characteristic that is absolutely essential to performing the job in question. For example, being female would be a reasonable BFOQ for a job modeling women's clothing.
The Act provides BFOQ exceptions only for religion, genetic information, age, sex, sexual orientation, gender identity, or national origin. There is no provision for a BFOQ for race, color, or marital status. Because BFOQ exceptions are interpreted very narrowly by Delaware's courts, it is highly advisable to seek legal counsel before using a BFOQ to make an employment decision that might be viewed as discriminatory. ...