State Law > South Dakota > South Dakota Employment Discrimination Law

South Dakota Employment Discrimination Law

 

Discrimination by employers is prohibited in the following sections of the Codified Laws of South Dakota.
South Dakota Human Relations Act

  • 20-13-1. Definition of terms. Terms used in this chapter mean:
  • 20-13-10. Employer's unfair or discriminatory practices.
  • 20-13-10.1. Blind or partially blind person -- Employment discrimination restricted -- Civil penalty.
  • 20-13-13. Employment advertising deemed unfair or discriminatory.
  • 20-13-14. Requiring security clearance not unfair or discriminatory.
  • 20-13-15. Use of ability test by employer not unfair or discriminatory.
  • 20-13-16. Seniority and merit preferences permitted -- Place of work differentials.
  • 20-13-18. Qualification based on religious purpose not unfair or discriminatory.
  • 20-13-26. Concealing, aiding, compelling or inducing unlawful discrimination -- Threats or reprisals.
  • 20-13-29. Charge filed with division -- Requirements -- Contents -- Public officials may file charge.
  • 20-13-42. Finding of discriminatory or unfair practice -- Cease and desist order -- Affirmative action required.
Equal Pay
  • 60-12-15. Equal pay for equal work -- Discrimination because of sex prohibited.
  • 60-12-16. Differentials excluded from prohibition.
  • 60-12-17. Terms and conditions of employment -- Employers required to maintain records.
  • 60-12-18. Liability of employer for sex discrimination in wages -- Other remedies unimpaired.
  • 60-12-19. Action to recover unpaid wages -- Agreement to work for less no defense.
  • 60-12-20. Time for commencement of action for unpaid wages.
  • 60-12-21. Employer prohibited from threatening employee to prevent enforcement of discrimination provisions.
Tobacco Use
  • 60-4-11. Tobacco use.
Genetic Information
  • 60-2-20. Unlawful employment practices.
  • 60-2-21. Genetic information defined.

South Dakota Human Relations Act

20-13-1. Definition of terms. Terms used in this chapter mean:

Nothing in this chapter prevents a school district from considering the sex of an employee in relation to employment duties in a locker room or toilet facility used only by members of one sex.

(1) "Commission," the South Dakota State Commission of Human Rights;

(2) "Commissioner," a member of the commission;

(3) "Court," the circuit court in and for the judicial circuit of the State of South Dakota in which the alleged unfair or discriminatory practice occurred;

(4) "Disability," a physical or mental impairment of a person resulting from disease, injury, congenital condition of birth or functional disorder which substantially limits one or more of the person's major life functions; a record of having such an impairment; or being regarded as having such an impairment which:

(a) For purposes of Sec. 20-13-10 to 20-13-17, inclusive, is unrelated to an individual's ability to perform the major duties of a particular job or position, or is unrelated to an individual's qualifications for employment or promotion;

(b) For purposes of Sec. 20-13-20 to 20-13-21.1, inclusive, is unrelated to an individual's ability to acquire, rent or maintain property;

(c) For purposes of Sec. 20-13-22 to 20-13-25, inclusive, is unrelated to an individual's ability to utilize and benefit from educational opportunities, programs and facilities at an educational institution.

This term does not include current illegal use of or addiction to marijuana as defined in subdivision 22-42-1 (7) or a controlled substance as defined in subdivision 22-42-1 (1);

(5) "Educational institution," any public or private institution of education and includes an academy, college, elementary or secondary school, extension course, kindergarten, nursery, school system and any business, nursing, professional, secretarial, technical, or vocational school, and includes any agent of such institutions;

(6) "Employee," any person who performs services for any employer for compensation, whether in the form of wages, salary, commission, or otherwise;

(7) "Employer," 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;

(8) "Employment agency," 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 any agent of such a person;

(9) "Familial status,"the relationship of individuals by birth, adoption or guardianship who are domiciled together;

(10) "Labor organization," includes any person, employee representation committee, plan in which employees participate, or other organization which exists wholly or in part for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment;

(11) "Person," includes one or more individuals, partnerships, associations, limited liability companies, corporations, unincorporated organizations, mutual companies, joint stock companies, trusts, agents, legal representatives, trustees, trustees in
bankruptcy, receivers, labor organizations, public bodies, public corporations, and the State of South Dakota and all political subdivisions and agencies thereof;

(12) "Public accommodations," any place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods to the general public for a fee, charge, or gratuitously. Public accommodation does not mean any bona fide private club or other place, establishment, or facility which is by its nature distinctly private, except when such distinctly private place, establishment, or facility caters or offers services, facilities, or goods to the general public for fee or charge or
gratuitously, it shall be deemed a public accommodation during such period of use;

(13) "Public service," any public facility, department, agency, board or commission, owned, operated or managed by or on behalf of the State of South Dakota, any political subdivision thereof, or any other public corporation;

(14) "Real estate broker" and "real estate salesman," real estate broker and real estate salesman as defined by Sec. 36-21A-6 or as licensed pursuant to Sec. 36-21A-47;

(15) "Real property," any right, title, interest in or to the possession, ownership, enjoyment, or occupancy of any parcel of land, any building situated thereon, or any portion of such building;

(16) "Unfair or discriminatory practice," 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, labor union membership, housing accommodations, property rights, education, public accommodations, and public services.

20-13-10. Employer's unfair or discriminatory practices.

It is an unfair or discriminatory practice for any person, because of race, color, creed, religion, sex, ancestry, disability or national origin, to fail or refuse to hire, to discharge an employee, or to accord adverse or unequal treatment to any person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff or any term or condition of employment.

20-13-10.1. Blind or partially blind person -- Employment discrimination restricted -- Civil penalty.

No person may refuse to hire a person, discharge an employee, or accord adverse or unequal treatment to any person or employee with respect to the application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff or any term or condition of employment because of their blindness or partial blindness unless specific vision requirements constitute demonstrated and bona fide occupational qualifications necessary for effective work performance and that person's blindness or partial blindness is related to the person's ability to perform the duties of a particular job or position. Nothing in this section requires an employer to provide any more than reasonable accommodations for a person's blindness or partial blindness. For the purpose of this section, blindness or partial blindness means legally blind which is 20/200 or less in the better eye with correction or where the field of vision subetends an angle of less than twenty degrees. A violation of this section is punishable by a civil penalty of not more than one thousand dollars.

20-13-13. Employment advertising deemed unfair or discriminatory.

It is an unfair or discriminatory practice for any employer, employment agency, labor organization or the employees, agents, or members thereof directly or indirectly to advertise or in any other manner indicate or publicize that individuals of any particular race, color, creed, religion, sex, ancestry, disability or national origin are unwelcome, objectionable, not acceptable, or not solicited for employment or membership.

20-13-14. Requiring security clearance not unfair or discriminatory.

Notwithstanding any provision of Sec. 20-13-10 to 20-13-13, inclusive, it shall not be an unfair or discriminatory practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that requirement.

20-13-15. Use of ability test by employer not unfair or discriminatory.

Notwithstanding any provision of Sec. 20-13-10 to 20-13-13, inclusive, it is not an unfair or discriminatory practice for an employer to give and to act upon the results of any professionally developed ability test if such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, creed, religion, sex, ancestry, disability or national origin.

20-13-16. Seniority and merit preferences permitted -- Place of work differentials.

Notwithstanding any provision of Sec. 20-13-10 to 20-13-13, inclusive, it is not an unfair or discriminatory 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, if such differences are not the result of an intention to discriminate because of race, color, creed, religion, sex, ancestry, disability or national origin.

20-13-18. Qualification based on religious purpose not unfair or discriminatory.

Sections 20-13-10 to 20-13-13, inclusive, shall not apply to any bona fide religious institution with respect to any qualifications for employment based on religion when such qualifications are related to a bona fide religious purpose.

20-13-26. Concealing, aiding, compelling or inducing unlawful discrimination -- Threats or reprisals.

It is an unfair or discriminatory practice for any person, directly or indirectly; to conceal any unlawful discrimination; to aid, abet, compel, coerce, incite or induce another person to discriminate; or by any means, trick, artifice, advertisement or sign, or use any form of application, or make any record or inquiry, or device whatsoever to bring about or facilitate discrimination; or to engage in or threaten to engage in any reprisal, economic or otherwise, against any person by reason of the latter's filing a charge, testifying or assisting in the observance and support of the purposes and provisions of this chapter.

20-13-29. Charge filed with division -- Requirements -- Contents -- Public officials may file charge.

Any person claiming to be aggrieved by a discriminatory or unfair practice may file with the Division of Human Rights a verified, written charge which shall state the name and address of the person or agency alleged to have committed the discriminatory or unfair practice. The charge shall set forth the facts upon which it is based, and shall contain any other information required by the division. The Commission of Human Rights, a commissioner, a state's attorney or the attorney general may file a charge.

20-13-31. Time for filing charge.

Any charge filed under this chapter shall be filed within one hundred and eighty days after the alleged discriminatory or unfair practice occurred.

20-13-32. Service of charge -- Investigation -- Conference or conciliation to eliminate practice.

After filing a verified charge, a true copy shall be served by registered or certified mail to the person against whom the charge is filed. A commissioner or a duly authorized Division of Human Rights agent shall promptly investigate the charge. If the investigating official determines that probable cause exists to support the allegations of the charge, the investigating official shall immediately endeavor to eliminate the discriminatory or unfair practice by conference or conciliation.

20-13-35. Notice to answer charge after investigating official's report -- Time for hearing -- Hearing examiner -- Right to transfer matter to circuit court.

If the investigating official is satisfied that further endeavor to settle a charge by conference or conciliation is futile, the official shall report the same to the Commission of Human Rights. If the commission determines that the circumstances warrant, it shall issue a written notice requiring the respondent to answer the charge at a hearing to be set within a reasonable period of time before the commission, a commissioner, or any other person designated by the commission to conduct the hearing, hereinafter referred to as hearing examiner, and at a time and place to be specified in the notice. The notice shall include a statement informing the parties of their right to transfer the matter to circuit court as provided in Sec. 20-13-35.1.

20-13-42. Finding of discriminatory or unfair practice -- Cease and desist order -- Affirmative action required.

If, upon taking into consideration all the evidence at a hearing, the commission finds that a respondent has engaged in, or is engaging in, any discriminatory or unfair practice as defined in this chapter, the commission shall state its findings of fact and shall issue and cause to be served upon such respondent an order requiring such respondent to cease and desist from such discriminatory or unfair practice and to take such affirmative action, including hiring, reinstatement, or upgrading of employees, with or without back pay; the referring of applicants for employment by any respondent employment agency; the admittance or restoration to membership by any respondent labor organization; the admission to or continuation in enrollment in an apprenticeship program or on-the-job training program; the posting of notices; the making of reports as to the manner of compliance; compensation incidental to the violation, other than pain and suffering, punitive, or consequential damages; costs allowable under chapter 15-17; any other appropriate relief; and reasonable attorneys' fees for housing matters, as in the judgment of the commission effectuates the purposes of this chapter.

20-13-47. Judicial review of commission -- court order for enforcement of order.

Any charging party or respondent claiming to be aggrieved by a final order of the Commission of Human Rights, including a refusal to issue an order, may obtain judicial review thereof under chapter 1-26.

The commission or party may obtain an order of court for the enforcement of commission orders in a proceeding as provided under chapter 21-34. The court may allow the prevailing party reasonable attorneys' fees and costs against the respondent. The court also may assess a civil penalty against the respondent in an amount not to exceed ten thousand dollars for willful or repeated violations or refusal to comply with an order of the commission.

Sec. 1. Investigative materials.

Prior to the issuance of a probable cause determination under Section 20-13-32, information and materials regarding a charge of discrimination obtained by an investigating official are confidential. Notwithstanding Sections 1-27-29 to 1-27-32, inclusive, after the issuance of a probable cause determination and upon receipt of a written request and payment of costs for copying, all investigatory materials may be disclosed to the parties or their counsel of record. [Sec. 1, as enacted by S.B. 24, L. 2002, effective July 1, 2002].

Equal Pay

60-12-15. Equal pay for equal work -- Discrimination because of sex prohibited.

No employer shall discriminate between employees on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility, but not to physical strength.

60-12-16. Differentials excluded from prohibition.

Differentials which are paid pursuant to established seniority systems, job descriptive systems, merit increase systems, or executive training programs, which do not discriminate on the basis of sex, are not within the prohibition of Sec. 60-12-15.

60-12-17. Terms and conditions of employment -- Employers required to maintain records.

Every employer of more than twenty-five persons shall make, keep, and maintain the records of the wage and wage rates, job classifications, and other terms and conditions of employment of the persons employed by him, and shall preserve the records for a reasonable period of time.

60-12-18. Liability of employer for sex discrimination in wages -- Other remedies unimpaired.

An employer who violates the provisions of Sec. 60-12-15 is liable to an employee affected in the amount of his unpaid wages.

Action to recover the liability may be maintained in a court of competent jurisdiction by one or more employees for themselves and other employees similarly situated. The court in the action may in addition to a judgment awarded to the plaintiff, allow a reasonable attorney fee to be paid by the defendant and costs. This section shall not be construed to limit a cause of action under chapter 20-13.

60-12-19. Action to recover unpaid wages -- Agreement to work for less no defense.

An agreement by an employee to work for less than the wage to which such employee is entitled to under Sec. 60-12-15 to 60-12-21, inclusive, is not a defense to the action.

60-12-20. Time for commencement of action for unpaid wages.

Court action under Sec. 60-12-18 may be commenced no later than two years after the cause of action occurs.

60-12-21. Employer prohibited from threatening employee to prevent enforcement of discrimination provisions.

No employer shall, for the purpose of dissuading an employee from preferring charges or giving information against him or testifying against him in an action brought under Sec. 60-12-18, threaten termination of the employ of the employee or other retaliatory action, or terminate the employ of the employee or take other retaliatory action.

Tobacco Use

60-4-11. Tobacco use.

It is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee's engaging in any use of tobacco products off the premises of the employer during nonworking hours unless such a restriction:

(1) Relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(2) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

Notwithstanding any other provisions of this chapter, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: the person may bring a civil suit for damages in circuit court and may sue for all wages and benefits which have been due up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred. However, nothing in this section may be construed to relieve such person from the obligation to mitigate damages. It is not a discriminatory or unfair employment practice pursuant to this section for an employer to offer, impose or have in effect a health or life insurance policy that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employees use of tobacco products. The provisions of this section shall not apply to full-time fire fighters.

Genetic Information

60-2-20. Unlawful employment practices.

It is an unlawful employment practice for an employer to seek to obtain, to obtain, or to use genetic information, as defined in Sec. 60-2-21 of an employee or a prospective employee to distinguish between or discriminate against employees or prospective employees or restrict any right or benefit otherwise due or available to an employee or a prospective employee. However, it is not an unlawful employment practice for an employer to seek to obtain, to obtain, or to use genetic information if:

(1) The employer is a law enforcement agency conducting a criminal investigation; or

(2) The employer relies on the test results from genetic information obtained by law enforcement through a criminal investigation, the employer legally acquires the test results, the employer keeps the test results confidential except as otherwise required by law, and the employer uses the test results for the limited purpose of taking disciplinary action against the employee based only on the alleged misconduct.

Any employee or prospective employee claiming to be aggrieved by this unlawful employment practice may bring a civil suit for damages in circuit court. The court may award reasonable attorney fees and costs in addition to any judgment awarded to the employee or prospective employee.

60-2-21. Genetic information defined.

For the purposes of Sec. 60-2-20, genetic information is information about genes, gene products, and inherited characteristics that may derive from the individual or a family member. This includes information regarding carrier status and information derived from laboratory tests that identify mutations in specific genes or chromosomes, physical medical examinations, family histories, and direct analysis of genes or chromosomes.

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