State Law: South Dakota

 

The Law

The South Dakota Human Relations Act of 1972, found in South Dakota Compiled Laws Chapter 20-13, makes it illegal for an employer or labor organization to discriminate against someone on the basis of sex.


The Human Relations Act defines "employee" as, "any person who performs services for any employer for compensation, whether in the form of wages, salary, commission, or otherwise." An "employer" means, "any person within the State of South Dakota who hires or employs any employee, and any person wherever situated who hires or employs any employee whose services are to be partially or wholly performed in the State of South Dakota."


Thus, the South Dakota statute against discrimination in the workplace applies to all employers with one or more employees, while Title VII only applies to employers with 15+ employees.


The Human Relations Act specifically covers employment discrimination on the basis of race, color, creed, religion, sex, ancestry, disability, and national origin.


An "unfair or discriminatory practice" under South Dakota law includes "any act or attempted act which because of race, color, creed, religion, sex, ancestry, disability, or national origin accords unequal treatment or separation or segregation of any person, or denies, prevents, limits, or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit or enjoyment by any person of employment …"


However, under Chapter 20-13, Section 17.1, it is not considered discriminatory to have a gender-preference at a single-sex facility. A school district is able to consider the sex of an employee when hiring for a position that would require duties in a locker room or toilet facility used only by members of one sex.


Pregnancy is treated as a temporary disability under the Human Relations Act.


Filing A Complaint

The South Dakota Department of Labor Division of Human Rights investigates complaints filed with it free of charge. Complaints under state law must be filed within 180 days of the date you became aware you were being discriminated against or the date of the alleged illegal act. You may file a complaint with the Commission by calling (605) 773-4493. You may also visit the office at 700 Governors Dr.; Pierre, South Dakota 57501.


You must complete an intake form when you contact the Division of Human Rights. If your complaint falls under the Division’s jurisdiction, you will receive an official charge of discrimination to review prepared by an intake officer that you must sign and have notarized.


Once you file a formal complaint with the Commission, the Commission will send your employer a letter and a copy of your complaint, stating that you believe you were/are being discriminated against. The employer will have an opportunity to respond to this complaint.


An investigator will be assigned to your case, who will investigate your claim by collecting all relevant information and interviewing potential witnesses. After the investigation is complete, it will be determined whether there is reasonable cause to believe you have been discriminated against and your rights violated.


If probable cause is found, you and your employer will be asked to attempt to negotiate a settlement through the Commission’s conciliation proceedings. If settlement negotiations fail, a public hearing may be held before the five-member Commission of Human Rights, you can request a Notice of Right to Sue letter, or remove the matter to Circuit Court. You have the option of retaining an attorney of your choosing at any point throughout the process.


You may decide to go through the federal or state court process instead of the Commission’s investigative process. You must first file with the EEOC and request a Notice of Right to Sue in order to file in federal court. The Division of Human Rights does not issue Notice of Right to Sue letters. However, you may elect to remove your case to Circuit Court within 20 days after the Division issues a probable cause finding. You will then have up to one year to initiate a civil action. The attorney you hire will explain this process to you. State law does not allow an award of attorney’s fees.


For more information and a more detailed explanation of the complaint process, please visit the South Dakota Division of Human Rights website.