Delaware Employment Discrimination Law

Delaware employment discrimination law is located in the following sections of the Delaware Code Annotated.

Equal Pay

• Sec. 1107A. Equal pay.

Discrimination in Employment Act
Title 19, Chapter 7, Subchapter II.

• Sec. 710. Definitions.
• Sec. 711. Unlawful employment practices; employer practices.
• Sec. 712. Enforcement provisions; powers of the Department; administrative process.
• Sec. 717. Veterans’ special rights or preference.

Handicapped Persons Employment Protections Act
Title 19, Chapter 7, Subchapter III.

• Sec. 721. Statement of purpose and interpretation.
• Sec. 722. Definitions
• Sec. 723. Reasonable accommodation duties.
• Sec. 724. Unlawful employment practices.
• Sec. 725. Affirmative defenses.

Sec. 1107A. Equal pay.

(a) No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on:

1) a seniority system;

2) a merit system;

3) a system which measures earnings by quantity or quality of production; or

4) any other factor other than sex; provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

(b) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of subsection (a) of this section.

(c) For purposes of administration and enforcement, any amounts owing to any employee which are withheld in violation of this section shall be deemed to be unpaid wages under this chapter.

(d) As used in this section, the term "labor organization" means any organization of any kind, or any agency or employee representative committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

Title 19, Chapter 7, Subchapter II. Discrimination in Employment.
Sec. 710. Definitions
For the purposes of this subchapter:

(1) "Age" as used in this subchapter means the age of 40 or more years of age.

(2) "Charging party" means any individual or the Department who initiates proceedings by the filing of a verified charge of discrimination, and who preserves a cause of action in Superior Court by exhausting the administrative remedies pursuant to the provisions of Section 714 of this title.

(3) "Conciliation" for the purposes of this chapter refers to a process which requires the appearance of the parties after a full investigation resulting in a final determination of reasonable cause.

(4) "Delaware Right to Sue Notice" for the purposes of this chapter refers to a final acknowledgement of the charging party's exhaustion of the administrative remedies provided herein and written notification to the charging party of a corresponding right to commence a lawsuit in Superior Court.

(5) "Employee" means an individual employed by an employer, but does not include:

a. Any individual employed in agriculture or in the domestic service of any person,

b. Any individual who, as a part of that individual's employment, resides in the personal residence of the employer,

c. Any individual employed by said individual's parents, spouse or child, or

d. Any individual elected to public office in the State or political subdivision by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the merit service rules or civil service rules of the state government or political subdivision.

(6) "Employer" means any person employing 4 or more employees within the State at the time of the alleged violation, including the State or any political subdivision or board, department, commission or school district thereof. The term "employer" with respect to discriminatory practices based upon sexual orientation does not include religious corporations, associations or societies whether supported, in whole or in part, by government appropriations, except where the duties of the employment or employment opportunity pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under § 511(a) of the Internal Revenue Code of 1986 [26 U.S.C. § 511(a)].

(7) "Employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(8) "Genetic information" for the purpose of this chapter means the results of a genetic test as defined in § 2317(a)(3) of Title 18.

(9) "Job related and consistent with business necessity" means the condition in question renders the individual unable to perform the essential functions of the position that such individual holds or desires. This includes situations in which the individual poses a direct threat to the health or safety of the individual or others in the workplace.

(10) "Labor organization" includes any organization of any kind, any agency or employee representation committee, group, association or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment, any conference, general committee, joint or system board or joint council so engaged which is subordinate to a national or international labor organization.

(11) "Mediation" for the purposes of this chapter refers to an expedited process for settling employment disputes with the assistance of an impartial third party prior to a full investigation.

(12) "No cause determination" means that the Department has completed its investigation and found that there is no reasonable cause to believe that an unlawful employment practice has occurred or is occurring. A no cause determination is a final determination ending the administrative process and provides the charging party with a corresponding Delaware Right to Sue Notice.

(13) "Person" includes 1 or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy or receivers.

(14) "Reasonable cause determination" means that the Department has completed its investigation and found reasonable cause to believe that an unlawful employment practice has occurred or is occurring. A reasonable cause determination requires the parties' good faith efforts in conciliation.

(15) "Religion" as used in this subchapter includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that the employer is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

(16) "Respondent" means any person named in the Charge of Discrimination, including but not limited to employers, employment agencies, labor organizations, joint labor-management committees, controlling apprenticeship or other training programs including on-the-job training programs.

(17) "Secretary" means the Secretary of the Department of Labor or the Secretary's designee.

(18) "Sexual orientation" exclusively means heterosexuality, homosexuality, or bisexuality.

Sec. 711. Unlawful employment practices; employer practices.

(a) It shall be an unlawful employment practice for an employer to:

(1) Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin; or

(2) Limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee because of such individual's race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin.

(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin or to classify or refer for employment any individual on the basis of race, marital status, genetic information, color, religion, age, sex, sexual orientation, or national origin.

(c) It shall be an unlawful employment practice for a labor organization to:

(1) Exclude or expel from its membership or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin;

(2) Limit, segregate or classify its membership or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive any individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect the individual's status as an employee or as an applicant for employment because of such individual's race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin; or

(3) Cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) It shall be an unlawful employment practice for any employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin in admission to or employment in any program established to provide apprenticeship or other training.

(e) It shall be an unlawful employment practice for an employer, employment agency, labor union or joint labor-management committee controlling apprenticeship or other training or retraining, including on the job training programs to intentionally collect, directly or indirectly, any genetic information concerning any employee or applicant for employment, or any member of their family, unless:

(1) It can be demonstrated that the information is job-related and consistent with business necessity; or

(2) The information or access to the information is sought in connection with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan.

(f) 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 discharge, refuse to hire or otherwise discriminate against any individual or applicant for employment or membership on the basis of such person's race, marital status, color, age, religion, sex, sexual orientation, or national origin, because such person has opposed any practice prohibited by this subchapter or because such person has testified, assisted or participated in any manner in an investigation, proceeding, or hearing to enforce the provisions of this subchapter.

(g) Notwithstanding any other provision of this subchapter:

(1) It shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual or for an employer, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program on the basis of religion, genetic information, age, sex, sexual orientation, or national origin in those certain instances where religion, genetic information, age, sex, sexual orientation, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise; and

(2) It shall not be an unlawful employment practice for a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society or if the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion.

(h) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, marital status, genetic information, color, age, religion, sex, sexual orientation, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, marital status, genetic information, color, religion, age, sex, sexual orientation, or national origin.

(i) Nothing contained in this subchapter as it applies to discrimination because of age or sex shall be interpreted to affect or interfere with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan, provided that such policy, system or plan is not merely a subterfuge to evade the purpose of this subchapter.

(j)

(1) Nothing in this subchapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age, and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan, or any combination of such plans, of the employer of such an employee, which equals, in the aggregate, at least $44,000.

(2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Secretary, United States Department of Labor, pursuant to 29 U.S.C. § 631(c)(2), so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.

(k) Nothing in this subchapter shall be interpreted to require employers to offer health, welfare, pension or other benefits to persons associated with employees on the basis as such benefits are afforded to the spouses of married employees.

Sec. 712. Enforcement provisions; powers of the Department; administrative process.

(a) The Department of Labor is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in Sec.Sec. 711, 723 and 724 of this title. In connection with the performance of its duties, the Department may:

(1) investigate employment practices by permitting the Department to enter any place of employment at reasonable times; inspect and copy records or documents in the possession of the employer, the employment agency or labor organization; administer oaths, certify to official acts, take and cause to be taken depositions of witnesses; issue subpoenas compelling the attendance and testimony of witnesses and the production of papers, books, accounts, payrolls, documents, and records;

(2) make, revise or rescind such rules or regulations necessary or appropriate to administer or enforce this chapter in accordance with the provisions of 29 Del. C. Sec. 10161 (b) of the Delaware Code;

(3) commence civil actions in Superior Court for violations of this chapter, any published regulations or for civil penalties provided herein.

(b) The Department shall have jurisdiction over all cases arising under this chapter, affording review and oversight of employment practices in Delaware. The Department shall endeavor to eliminate unlawful discrimination in employment through its administrative process set forth below. This subchapter shall afford the sole remedy for claims alleging a violation of this chapter to the exclusion of all other remedies. Upon termination of the administrative process by the Department, the Charging Party may institute a civil action in Superior Court of the State of Delaware pursuant to Sec.Sec. 714,715.

(c) The administrative process requires the following:

(1) Statute of limitation and filing procedure. Any person claiming to be aggrieved by a violation of this chapter shall first file a Charge of Discrimination within 120 days of the alleged unlawful employment practice or its discovery, setting forth a concise statement of facts, in writing, verified and signed by the Charging Party. The Department shall serve a copy of the verified Charge of Discrimination upon the named Respondent by certified mail. The Respondent may file an answer within twenty (20) days of its receipt, certifying that a copy of the answer was mailed to the Charging Party at the address provided.

(2) Preliminary findings and recommendations. The Department shall review the submissions within sixty (60) days from the date of service upon the Respondent and issue preliminary findings with recommendations. The preliminary findings may recommend:

(i) dismissing the Charge unless additional information is received which warrants further investigation;

(ii) referring the case for mediation requiring the parties' appearance; or (iii) referring the case for investigation.

(3) Final determinations upon completion of investigation. After investigation, the Department shall issue a Determination of either "Reasonable Cause" or "No Reasonable Cause" to believe that a violation has occurred or is occurring. All cases resulting in a "Reasonable Cause" Determination will require the parties to appear for compulsory conciliation. All cases resulting in a "No Cause" Determination will receive a corresponding Delaware Right to Sue Letter.

(4) Confidentiality of the Department's process. The Department shall not make public the charge of discrimination or information obtained during the investigation of a charge. This provision does not apply to disclosures made to the parties, their counsel, or witnesses where disclosure is deemed necessary or appropriate. Nothing said or done during and as a part of the mediation or conciliation efforts may be made public by the Department, its officers or employees or used by any party as evidence in a subsequent proceeding without the written consent of the persons concerned.

(5) End of administrative process. In all cases where the Department has dismissed the Charge, issued a No Cause Determination or upon the parties failed conciliation efforts, the Department shall issue a Delaware Right to Sue Notice, acknowledging the Department's termination of the administrative process. Once the Department has issued its preliminary findings pursuant to subsection (2), the Department, in its discretion, may grant a Delaware Right to Sue Notice to a Charging Party.

Sec. 713. Civil action by the Attorney General; complaint.

(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter or subchapter III of this chapter and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the Court of Chancery by filing with it a complaint:

(1) Signed by the Attorney General (or in the Attorney General's absence the Chief Deputy Attorney General);

(2) Setting forth facts pertaining to such pattern or practice; and

(3) Requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as the Attorney General deems necessary to insure the full enjoyment of the rights herein described.

(b) The Court of Chancery shall have jurisdiction over proceedings brought pursuant to this section.

Sec. 714. Civil action by the Charging Party; Delaware Right to Sue Notice; election of remedies.

(a) A Charging Party may file a civil action in Superior Court, after exhausting the administrative remedies provided herein and receipt of a Delaware Right to Sue Notice acknowledging same.

(b) The Delaware Right to Sue Notice shall include authorization for the Charging Party to bring a civil action under this Chapter in Superior Court by instituting suit within ninety (90) days of its receipt or within ninety (90) days of receipt of a Federal Right to Sue Notice, whichever is later.

(c) The Charging Party shall elect a Delaware or federal forum to prosecute the employment discrimination cause of action so as to avoid unnecessary costs, delays and duplicative litigation. A Charging Party is barred by this election of remedies from filing cases in both Superior Court and the federal forum. If the Charging Party files in Superior Court and in a federal forum, the Respondent may file an application to dismiss the Superior Court action under this election of remedies provision.

Sec. 715. Judicial remedies; civil penalties.

Superior Court shall have jurisdiction over all proceedings brought by the Charging Party pursuant to Sec. 714. Superior Court may excuse a Charging Party who has complied with the compulsory conciliation provisions of this chapter from the compulsory arbitration provisions of Superior Court rule.

(a) Superior Court shall have the authority to provide the following relief, including but not limited to: (1) order the Respondent to cease and desist or modify its existing employment policies; (2) order the Respondent to hire, reinstate or promote the Charging Party; (3) order the payment of compensatory damages, including but not limited to general and special damages, punitive damages when appropriate, not to exceed the damage awards allowable under Title VII of the Civil Rights Act of 1964, as amended, provided that for the purposes of this subchapter, employers with 4-14 employees shall be treated under Title VII's damage award as an employer having under 50 employees; and (4) order the costs of litigation and reasonable attorney's fees to the prevailing party.

(b) In any action brought by the Department for violation of the retaliation provision of section 711(f), the Court shall fine the employer not less than $1,000 nor more than $5,000 for each violation, in addition to any liability for damages.

Sec. 716. Posting of notices; penalties.

(a) Every employer, employment agency and labor organization, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, and applicants for employment are customarily posted, a notice to be prepared or approved by the Department setting forth excerpts from or summaries of the pertinent provisions of this subchapter and subchapter III of this chapter and information pertinent to the filing of a complaint.

(b) A willful violation of this section shall be punishable by a fine of not more than $100 for each separate offense.

Sec. 717. Veterans' special rights or preference.

Nothing contained in this subchapter or subchapter III of this chapter shall be construed to repeal or modify any state or local law creating special rights or preferences for veterans.

Sec. 718. Short title, effective date, savings clause.

(a) This subchapter may be cited as the "Discrimination in Employment Act."

(b) This Act shall become effective sixty (60) days after its enactment into law.

(c) This Act does not affect any cause of action or the remedy provided therefor if such cause of action accrued and suit was instituted thereon prior to the effective date of this Act.

Sec. 720. Short title.

This subchapter may be cited as the "Handicapped Persons Employment Protections Act."

Sec. 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.

Sec. 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 Sec. 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. Sec. 701 et seq.], as amended, and, consistent with Sec. 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.

Sec. 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 Sec. 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.

Sec. 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 Sec. 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 Sec. 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.

Sec. 725. Affirmative defenses.

In defense of any action to enforce Sec. 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 Sec. 722(6) of this title, including undue hardship, are applicable.

Sec. 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.

Sec. 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 Sec. 712 of this title shall be barred if the complainant has commenced federal judicial or administrative proceedings under Sec. 503 or Sec. 504 of the Rehabilitation Act of 1973 [29 U.S.C. Sec. 793 or Sec. 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 Sec. 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 Sec. 712 of this title and waive the limitations period of Sec. 712(d) of this title upon a finding that the complainant commenced the complainant's federal action in good faith.

Sec. 728. Regulations.

The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this subchapter.