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20-13 HUMAN RIGHTS
CHAPTER 20-13

HUMAN RIGHTS

20-13-1      Definition of terms.
20-13-1.1      Probable cause defined.
20-13-2      State Commission of Human Rights--Appointment of members--Terms--Vacancies--Removal.
20-13-2.1      Direction and supervision of commission by Department of Labor and Regulation--Independent functions retained by commission.
20-13-3      Quorum of commission--Rules governing meetings.
20-13-4      Per diem and expenses of commission members.
20-13-5      Employment of personnel by division.
20-13-6      Legal assistance to commission.
20-13-7      Investigation and elimination of discrimination by education and conciliation.
20-13-8      Cooperation with other agencies.
20-13-9      Funds and grants accepted--Accounting.
20-13-10      Employer's unfair or discriminatory practices.
20-13-10.1      Blind or partially blind person--Employment discrimination restricted--Civil penalty.
20-13-11      Employment agency's unfair or discriminatory practices.
20-13-12      Labor organization's unfair or discriminatory practices.
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.
20-13-17      Sex differentiation permitted when based on seniority, job description, merit or executive training systems.
20-13-17.1      Gender preference for hires at single-sex facility not discriminatory.
20-13-18      Qualification based on religious purpose not unfair or discriminatory.
20-13-19      Repealed.
20-13-20      Unfair or discriminatory housing practices by owner or agent.
20-13-20.1      Discrimination based on familial status--"Family" defined--Application to housing accommodations.
20-13-20.2      Unfair or discriminatory housing practices based on familial status--Exemptions.
20-13-21      Unfair or discriminatory housing practice by financial institution or lender.
20-13-21.1      Housing--Modifications on behalf of disabled persons unnecessary--Disabled persons not relieved of obligations.
20-13-21.2      Design or construction of multifamily dwellings--Access to housing units and common areas by disabled persons and wheelchairs--Prior approval of plans not required.
20-13-22      Educational institutions' unfair or discriminatory practices--Exemptions.
20-13-22.1      Programs and activities exempt when conducted for educational, social, or recreational purposes.
20-13-22.2      Selection of students to participate in exempt programs permitted--Conduct of programs.
20-13-23      Public accommodations--Unfair or discriminatory practices.
20-13-23.1      Right of disabled persons to equal treatment in public accommodations.
20-13-23.2      Physically disabled, blind or deaf person's right to be accompanied by guide dog without extra charge--Liability for damages--Violation as misdemeanor.
20-13-23.3      Repealed.
20-13-23.4      Right to keep guide dog in rented or leased residence--Violation as misdemeanor.
20-13-23.5      Repealed.
20-13-23.6      Repealed.
20-13-23.7      Good faith efforts made to accommodate disabled persons.
20-13-23.8      Repealed.
20-13-23.9      Repealed.
20-13-23.10      Repealed.
20-13-24      Public services--Unfair or discriminatory practices.
20-13-25      Advertising public accommodations or services--Unfair or discriminatory practices.
20-13-26      Concealing, aiding, compelling, or inducing unlawful discrimination--Threats or reprisals.
20-13-27      Regulations for enforcement of chapter.
20-13-28      Complaints acted upon by division.
20-13-28.1      Dismissal of charge if investigation shows no probable cause.
20-13-29      Charge filed with division--Requirements--Contents--Public officials may file charge.
20-13-30      Charge by employer or organization against employees or members.
20-13-31      Time for filing charge.
20-13-32      Service of charge--Investigation--Conference or conciliation to eliminate practice.
20-13-32.1      Repealed.
20-13-32.2      Investigative materials confidential--Access to material by parties following determination.
20-13-33      Repealed.
20-13-34      Notice to respondent to answer charge--Time for answer.
20-13-35      Notice to answer charge after investigating official's report--Time for hearing--Hearing examiner--Right to transfer matter to circuit court.
20-13-35.1      Right to proceed by civil action in lieu of hearing--Forms of relief available.
20-13-36      Administration of oaths--Depositions.
20-13-37      Evidence rules inapplicable at hearings--Cross-examination--Burden of proof--Preservation of testimony.
20-13-38      Presentation of case--Investigating official's participation limited.
20-13-39      Respondent's answer and appearance at hearing--Charging party's intervention.
20-13-40      Amendment of charge or answer.
20-13-41      Proceedings on default by respondent.
20-13-42      Finding of discriminatory or unfair practice--Cease and desist order--Affirmative action required.
20-13-43      Finding of no discriminatory or unfair practice--Dismissal of charge.
20-13-44      Majority of commission required for final orders.
20-13-45      Procedural rules.
20-13-46      Rules governed by general law on administrative rules.
20-13-47      Judicial review of commission--court order for enforcement of order.
20-13-48 to 20-13-51. Repealed.
20-13-52      Commission's appearance by attorney--Supervision--Exception in action against governmental agency.


20-13-53      Repealed.
20-13-54      Broad construction of chapter.
20-13-55      Severability of provisions.
20-13-56      Citation of chapter.


20-13-1 Definition of terms.
     20-13-1.   Definition of terms. Terms used in this chapter mean:
             (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 §§ 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 §§ 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 §§ 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 § 36-21A-6 or as licensed pursuant to § 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.

Source: SL 1972, ch 11, § 2; SL 1973, ch 142, § 1; SL 1986, ch 170, §§ 2-3A; SL 1991, ch 179, § 5; SL 1994, ch 351, § 40.


20-13-1.1 Probable cause defined.
     20-13-1.1.   Probable cause defined. For purposes of findings under this chapter, probable cause is defined as a determination that it is more likely than not that the charging party and members of a class, or both, were discriminated against based on a violation of this chapter. The likelihood that discrimination occurred is assessed based upon evidence that establishes a prima facie case, and if the respondent has provided a viable defense, whether there is evidence of pretext.

Source: SL 1996, ch 246.


20-13-2 State Commission of Human Rights--Appointment of members--Terms--Vacancies--Removal.
     20-13-2.   State Commission of Human Rights--Appointment of members--Terms--Vacancies--Removal. The State Commission of Human Rights shall consist of five members appointed by the Governor, no more than three of whom may be from the same political party and two of whom shall, in the opinion of the Governor, be experienced in or have a favorable reputation for skill, knowledge, and experience in the management or operations of a business enterprise. Appointments shall take into consideration geographical area insofar as may be practicable. Members appointed to the commission shall serve for a term of four years expiring June thirtieth of an odd-numbered year. Vacancies on the commission shall be filled by the Governor by appointment for the unexpired part of the term of the vacancy. Any commissioner may be removed from office by the Governor for cause.

Source: SL 1972, ch 11, § 3; SL 1976, ch 19, § 9; SL 1983, ch 166, § 1; SL 2011, ch 74, § 5.


20-13-2.1 Direction and supervision of commission by Department of Labor and Regulation--Independent...
     20-13-2.1.   Direction and supervision of commission by Department of Labor and Regulation--Independent functions retained by commission. The Commission of Human Rights shall be administered under the direction and supervision of the Department of Labor and Regulation and the director thereof, but shall retain the quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions (as defined in § 1-32-1) otherwise vested in it and shall exercise those functions independently of the director of human rights.

Source: SL 1973, ch 2 (Ex. Ord. 73-1), § 65; SL 2003, ch 272 (Ex. Ord. 03-1), § 30; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


20-13-3 Quorum of commission--Rules governing meetings.
     20-13-3.   Quorum of commission--Rules governing meetings. A quorum shall consist of three members. The commission shall adopt, amend, or rescind such rules as shall be necessary for the conduct of its meetings.

Source: SL 1972, ch 11, §§ 3, 4; SL 1989, ch 184, § 1.


20-13-4 Per diem and expenses of commission members.
     20-13-4.   Per diem and expenses of commission members. Members shall receive per diem at the rate provided by law and shall be reimbursed for necessary travel and other expenses incurred while on official commission business.

Source: SL 1972, ch 11, § 3; SL 1973, ch 142, § 2.


20-13-5 Employment of personnel by division.
     20-13-5.   Employment of personnel by division. The Division of Human Rights shall have the following powers and duties:
             (1)      To appoint and prescribe the duties of such investigators and agents as the division shall deem necessary for the enforcement of this chapter.
             (2)      To hire any secretarial, investigative, or other assistance that may be necessary to accomplish the commission's purposes.

Source: SL 1972, ch 11, § 5 (1), (9).


20-13-6 Legal assistance to commission.
     20-13-6.   Legal assistance to commission. The attorney general shall render such legal assistance and counsel to the commission as may from time to time be required.

Source: SL 1972, ch 11, § 15.


20-13-7 Investigation and elimination of discrimination by education and conciliation.
     20-13-7.   Investigation and elimination of discrimination by education and conciliation. The Division of Human Rights may investigate and study the existence, character, causes, and extent of discrimination in employment, labor unions, housing accommodations, property rights, education, public accommodations, and public services in this state and attempt to eliminate any discrimination by education and conciliation.

Source: SL 1972, ch 11, § 5 (3); SL 1981, ch 166, § 1.


20-13-8 Cooperation with other agencies.
     20-13-8.   Cooperation with other agencies. The Division of Human Rights may cooperate with other agencies or organizations, both public and private whose purposes are consistent with those of this chapter, and in the planning and conducting of programs designed to eliminate racial, religious, cultural, and inter-group tensions.

Source: SL 1972, ch 11, § 5 (6); SL 1981, ch 166, § 2.


20-13-9 Funds and grants accepted--Accounting.
     20-13-9.   Funds and grants accepted--Accounting. The Division of Human Rights may receive, administer, dispense, and account for any funds that may be voluntarily contributed to the division and any grants that may be awarded the division for furthering the purposes of this chapter.

Source: SL 1972, ch 11, § 5 (8); SL 1981, ch 166, § 3.


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

Source: SL 1972, ch 11, § 6(1); SL 1986, ch 170, § 7; SL 1991, ch 179, § 7.


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

Source: SL 1984, ch. 156; SL 1985, ch 15, § 34.


20-13-11 Employment agency's unfair or discriminatory practices.
     20-13-11.   Employment agency's unfair or discriminatory practices. It is an unfair or discriminatory practice for any employment agency, because of race, color, creed, religion, sex, ancestry, disability, or national origin, to accord adverse or unequal treatment to any person in connection with any application for employment, any referral, or any request for assistance in procurement of employees, or to accept any listing of employment on such a basis.

Source: SL 1972, ch 11, § 6(2); SL 1986, ch 170, § 8; SL 1991, ch 179, § 8.


20-13-12 Labor organization's unfair or discriminatory practices.
     20-13-12.   Labor organization's unfair or discriminatory practices. It is an unfair or discriminatory practice for any labor organization, because of race, color, creed, religion, sex, ancestry, disability, or national origin, to deny full and equal membership rights to an applicant for membership or to a member; to expel, suspend, or otherwise discipline a member; or to accord adverse, unlawful, or unequal treatment to any person with respect to that person's hiring, apprenticeship, training, tenure, compensation, upgrading, layoff, or any term or condition of employment.

Source: SL 1972, ch 11, § 6(3); SL 1986, ch 170, § 9; SL 1991, ch 179, § 9.


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

Source: SL 1972, ch 11, § 6(4); SL 1986, ch 170, § 10; SL 1991, ch 179, § 10.


20-13-14 Requiring security clearance not unfair or discriminatory.
     20-13-14.   Requiring security clearance not unfair or discriminatory. Notwithstanding any provision of §§ 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.

Source: SL 1972, ch 11, § 6 (5).


20-13-15 Use of ability test by employer not unfair or discriminatory.
     20-13-15.   Use of ability test by employer not unfair or discriminatory. Notwithstanding any provision of §§ 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.

Source: SL 1972, ch 11, § 6(6); SL 1973, ch 142, § 3; SL 1986, ch 170, § 11; SL 1991, ch 179, § 11.


20-13-16 Seniority and merit preferences permitted--Place of work differentials.
     20-13-16.   Seniority and merit preferences permitted--Place of work differentials. Notwithstanding any provision of §§ 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.

Source: SL 1972, ch 11, § 6(6); SL 1973, ch 142, § 4; SL 1986, ch 170, § 12; SL 1991, ch 179, § 12.


20-13-17 Sex differentiation permitted when based on seniority, job description, merit or executive...
     20-13-17.   Sex differentiation permitted when based on seniority, job description, merit or executive training systems. Notwithstanding any provision of §§ 20-13-10 to 20-13-13, inclusive, it shall not be an unfair or discriminatory practice for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of § 60-12-16.

Source: SL 1972, ch 11, § 6 (6).


20-13-17.1 Gender preference for hires at single-sex facility not discriminatory.
     20-13-17.1.   Gender preference for hires at single-sex facility not discriminatory. 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.

Source: SL 2003, ch 122, § 1.


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

Source: SL 1972, ch 11, § 6.


20-13-19
     20-13-19.   Repealed by SL 1973, ch 142, § 7


20-13-20 Unfair or discriminatory housing practices by owner or agent.
     20-13-20.   Unfair or discriminatory housing practices by owner or agent. It is an unfair or discriminatory practice for any owner of rights to housing or real property, or any person acting for an owner, with or without compensation, including any person licensed as a real estate broker or salesman, attorney, auctioneer, agent, or representative by power of attorney or appointment, or to any person acting under court order, deed of trust, or will:
             (1)      To refuse to sell, rent, lease, assign, sublease, or otherwise transfer any real property or housing accommodation or part, portion, or interest therein, to any person because of the race, color, creed, religion, sex, ancestry, disability, familial status, or national origin of the person or persons intending to reside there;
             (2)      To discriminate against any person because of that person's race, color, creed, religion, sex, ancestry, disability, familial status, or national origin, in the terms, conditions, or privileges of the sale, rental, lease, assignment, sublease, or other transfer of any real property or housing accommodation or any part, portion, or interest therein;
             (3)      To directly or indirectly advertise, or to indicate or publicize in any other manner that the purchase, rental, lease, assignment, sublease, or other transfer of any real property or housing accommodation or any part, portion or interest therein, by persons of any particular race, color, creed, religion, sex, ancestry, disability, familial status, or national origin, is unwelcome, objectionable, not acceptable, or not solicited;
             (4)      To refuse to permit, at the expense of the disabled person, reasonable modifications of existing property that may be necessary to afford full enjoyment of property. The landlord may, where it is reasonable to do so, condition permission for a modification on the renter's agreeing to restore the premises to the condition that existed prior to the modification, reasonable wear and tear excepted.
     The provisions of subdivisions (1), (2), and (4) do not apply to rooms or units in dwellings that contain living quarters for no more than two families living independently of each other, if the owner maintains and occupies one of the living quarters as the owner's residence.
     This section does not apply to dormitory residences maintained by public or private schools, colleges, and universities for the educational benefit and convenience of unmarried students or to dwellings occupied by fraternities or sororities officially recognized by such institutions. Nothing in this statute may be construed to displace federal, state, or local guidelines setting reasonable standards governing maximum numbers of occupants.

Source: SL 1972, ch 11, § 7; SL 1983, ch 167; SL 1986, ch 170, § 13; SL 1991, ch 179, § 13.


20-13-20.1 Discrimination based on familial status--"Family" defined--Application to housin...
     20-13-20.1.   Discrimination based on familial status--"Family" defined--Application to housing accommodations. For the purposes of determining discrimination based on familial status, a family is one or more individuals under the age of eighteen who are domiciled with their parent, legal custodian, or person granted custody with permission of the parent or custodian. This definition includes a person who is pregnant or in the process of securing custody of a person under the age of eighteen years. Discrimination based on familial status applies to housing accommodations only.

Source: SL 1991, ch 179, § 6.


20-13-20.2 Unfair or discriminatory housing practices based on familial status--Exemptions.
     20-13-20.2.   Unfair or discriminatory housing practices based on familial status--Exemptions. The provisions of § 20-13-20 as it refers to familial status do not apply to residences publicized as specifically designated for older or disabled residents and if:
             (1)      A state or federal program has designated the residences for the elderly;
             (2)      The residences are intended for and solely occupied by persons sixty-two years of age or older; or
             (3)      Facilities and services for the residents are designed to meet the needs of the elderly and at least eighty percent of the units are occupied or intended to be occupied by one or more persons fifty-five years of age or older.

Source: SL 1991, ch 179, § 14.


20-13-21 Unfair or discriminatory housing practice by financial institution or lender.
     20-13-21.   Unfair or discriminatory housing practice by financial institution or lender. It is an unfair or discriminatory practice for any person, bank, banking organization, mortgage company, insurance company, or other financial institution or lender to whom application is made for financial assistance for the purchase, lease, acquisition, construction, rehabilitation, repair, or maintenance of any real property or any agent or employee thereof, to discriminate against any person or group of persons, because of the race, color, creed, religion, sex, ancestry, disability, or national origin of such person or group of persons or of the prospective occupants or tenants of such real property in the granting, withholding, extending, modifying, renewing, or in the rates, terms, conditions or privileges of any such financial assistance or in the extension of services in connection therewith.

Source: SL 1972, ch 11, § 7; SL 1986, ch 170, § 15.


20-13-21.1 Housing--Modifications on behalf of disabled persons unnecessary--Disabled persons not rel...
     20-13-21.1.   Housing--Modifications on behalf of disabled persons unnecessary--Disabled persons not relieved of obligations. Nothing in this chapter requires any person selling, renting, or leasing property, or any person acting for an owner, with or without compensation, including any person licensed as a real estate broker or salesman, property manager, attorney, auctioneer, agent, or representative by power of attorney or appointment, or any person acting under court order, deed of trust, or will, to modify the property in any way, incur any additional expenses or exercise a higher degree of care for a person having a disability than for a person who does not have a disability. Nor does this chapter relieve any person of any obligations generally imposed on all persons, regardless of any disability, in a written lease, rental agreement or contract of purchase or sale, or to forbid distinctions based on the inability to fulfill the terms and conditions, including financial obligations of the lease, agreement, or contract.

Source: SL 1986, ch 170, § 14; SL 1991, ch 179, § 16.


20-13-21.2 Design or construction of multifamily dwellings--Access to housing units and common areas ...
     20-13-21.2.   Design or construction of multifamily dwellings--Access to housing units and common areas by disabled persons and wheelchairs--Prior approval of plans not required. It is an unfair or discriminatory practice to design or construct any multifamily dwellings with more than four units for sale, rent, lease, assignment, sublease, or transfer that do not enable accessibility to ground-floor common areas and usability of ground-floor housing units by disabled persons or by wheelchairs. If the building has elevators, all housing units and common areas shall be usable by disabled persons and persons in wheelchairs. The accommodations may include widened doors, lowered electrical switches and outlets, lowered environmental controls, grab bars or reinforcements, kitchens and bathrooms usable by the disabled. Nothing in this law may be construed to require prior approval of plans for construction by the Division of Human Rights or the Commission of Human Rights.

Source: SL 1991, ch 179, § 15.


20-13-22 Educational institutions' unfair or discriminatory practices--Exemptions.
     20-13-22.   Educational institutions' unfair or discriminatory practices--Exemptions. It is an unfair or discriminatory practice for any educational institution:
             (1)      To discriminate in any manner in its full use or in its benefits, or in its services against any individual because of race, color, creed, religion, sex, ancestry, disability, or national origin.
             (2)      To include, expel, limit, or otherwise discriminate against any individual seeking admission as a student, or an individual enrolled as a student because of race, color, creed, religion, sex, ancestry, disability, or national origin.
             (3)      To make or use a written or oral inquiry, or form of application for admission that elicits or attempts to elicit information, or to make or keep a record, concerning the race, color, creed, religion, ancestry, disability, or national origin of an applicant for admission except as may be permitted by regulations of the commission of human rights.
     Segregation by sex of athletic activities offered by an educational institution does not constitute discrimination on the basis of sex in violation of this chapter if the opportunity to participate in athletic activities offered by the educational institution is substantially equal for both sexes.
     This section does not apply to any bona fide religious institution which has a qualification based on religion if such qualification is related to a bona fide religious purpose.

Source: SL 1972, ch 11, § 8; SL 1973, ch 142, § 5; SL 1981, ch 166, § 4; SL 1986, ch 170, § 16.


20-13-22.1 Programs and activities exempt when conducted for educational, social, or recreational pur...
     20-13-22.1.   Programs and activities exempt when conducted for educational, social, or recreational purposes. The provisions of this chapter which prohibit discrimination on the basis of sex do not apply to the programs or activities of the following when conducted for any educational, social, or recreational purpose:
             (1)      Voluntary youth service organizations, the membership of which has been traditionally limited to members of one sex and principally to persons of nineteen years of age or less;
             (2)      Nationally chartered veterans organizations or any organization, agency, or corporation directly affiliated therewith;
             (3)      Mother-daughter or father-son activities;
             (4)      Social fraternities or sororities, the active membership of which consists primarily of students in attendance at institutions of higher education, where living quarters are provided to members;
             (5)      Any individual officers or members of such organizations or other individuals cooperating therewith in the conduct of such activities or programs as are listed in subdivisions (1) to (4), inclusive.

Source: SL 1977, ch 183, § 1; SL 1989, ch 184, § 2.


20-13-22.2 Selection of students to participate in exempt programs permitted--Conduct of programs.
     20-13-22.2.   Selection of students to participate in exempt programs permitted--Conduct of programs. It shall not be considered an unfair or discriminatory practice for any educational institution to promote or aid in the selection of students to participate in programs or activities exempted by § 20-13-22.1 or for such program or activity to be conducted in public or private educational institutions or public accommodations.

Source: SL 1977, ch 183, § 2.


20-13-23 Public accommodations--Unfair or discriminatory practices.
     20-13-23.   Public accommodations--Unfair or discriminatory practices. It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, disability, or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.

Source: SL 1972, ch 11, § 9(1); SL 1986, ch 170, § 17.


20-13-23.1 Right of disabled persons to equal treatment in public accommodations.
     20-13-23.1.   Right of disabled persons to equal treatment in public accommodations. Any person with a disability is entitled to reasonably equal accommodations, advantages, facilities, and privileges of all hotels, lodging places, places of public accommodation, amusement or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons.

Source: SL 1976, ch 153, § 1; SL 1986, ch 170, § 18.


20-13-23.2 Physically disabled, blind or deaf person's right to be accompanied by guide dog without e...
     20-13-23.2.   Physically disabled, blind or deaf person's right to be accompanied by guide dog without extra charge--Liability for damages--Violation as misdemeanor. Any person who is totally or partially physically disabled, totally or partially blind, or totally or partially deaf may be accompanied by a service animal, especially trained for the purpose, in any of the places listed in § 20-13-23.1 without being required to pay an extra charge for the service animal. However, the person with a disability is liable for any damage done to the premises or facilities by the service animal. Failure of any owner or employee of a place listed in § 20-13-23.1 to comply with the provisions of this section is a Class 2 misdemeanor.

Source: SL 1976, ch 153, § 2; SL 1980, ch 172, § 1; SL 1994, ch 160, § 1; SL 1995, ch 118, § 1.


20-13-23.3
     20-13-23.3.   Repealed by SL 1986, ch 170, § 19


20-13-23.4 Right to keep guide dog in rented or leased residence--Violation as misdemeanor.
     20-13-23.4.   Right to keep guide dog in rented or leased residence--Violation as misdemeanor. No landlord may prohibit by lease or otherwise the keeping of a service animal by a person who is totally or partially physically disabled, totally or partially blind, or totally or partially deaf in an apartment or other rented or leased residential property. A violation of this section is a Class 2 misdemeanor.

Source: SDCL, § 20-13-23.2 as added by SL 1980, ch 172, § 1; SL 1994, ch 160, § 4; SL 1995, ch 118, § 2.


20-13-23.5
     20-13-23.5.   Repealed by SL 1994, ch 160, § 2


20-13-23.6
     20-13-23.6.   Repealed by SL 1994, ch 160, § 5


20-13-23.7 Good faith efforts made to accommodate disabled persons.
     20-13-23.7.   Good faith efforts made to accommodate disabled persons. For purposes of employment, public accommodation, public service, and education or housing, good faith efforts shall be made to reasonably accommodate the disabled person unless the accommodation would impose undue hardship.

Source: SL 1986, ch 170, § 4.


20-13-23.8
     20-13-23.8.   Repealed by SL 1993, ch 169


20-13-23.9
     20-13-23.9.   Repealed by SL 1994, ch 160, § 3


20-13-23.10
     20-13-23.10.   Repealed by SL 1994, ch 160, § 6


20-13-24 Public services--Unfair or discriminatory practices.
     20-13-24.   Public services--Unfair or discriminatory practices. It is an unfair or discriminatory practice for any person engaged in the provision of public services, by reason of race, color, creed, religion, sex, ancestry, disability, or national origin, to fail or refuse to provide to any person access to the use of and benefit thereof, or to provide adverse or unequal treatment to any person in connection therewith.

Source: SL 1972, ch 11, § 9(2); SL 1986, ch 170, § 20.


20-13-25 Advertising public accommodations or services--Unfair or discriminatory practices.
     20-13-25.   Advertising public accommodations or services--Unfair or discriminatory practices. It is an unfair or discriminatory practice for any person directly or indirectly to advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, color, creed, religion, sex, ancestry, disability, or national origin is unwelcome, objectionable, not acceptable, or not solicited.

Source: SL 1972, ch 11, § 9(3); SL 1986, ch 170, § 21.


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

Source: SL 1972, ch 11, § 10; SL 1981, ch 166, § 5.


20-13-27 Regulations for enforcement of chapter.
     20-13-27.   Regulations for enforcement of chapter. The commission shall promulgate rules, pursuant to chapter 1-26, consistent with and necessary for the enforcement of this chapter pertaining to:
             (1)      The administration of the division;
             (2)      Complaints, investigations, findings, answers and hearings, and orders;
             (3)      General commission policies;
             (4)      Tests in employee selection; and
             (5)      Discrimination based upon sex, race, religion or creed, origin, ancestry, familial status, or disability.

Source: SL 1972, ch 11, § 5(7); SL 1986, ch 22, § 19; SL 1989, ch 185; SL 1991, ch 179, § 17.


20-13-28 Complaints acted upon by division.
     20-13-28.   Complaints acted upon by division. The Division of Human Rights may receive, investigate, and pass upon charges alleging unfair or discriminatory practices.

Source: SL 1972, ch 11, § 5 (2); SL 1978, ch 153, § 5; SL 1981, ch 166, § 6.


20-13-28.1 Dismissal of charge if investigation shows no probable cause.
     20-13-28.1.   Dismissal of charge if investigation shows no probable cause. If the Division of Human Rights determines there is no probable cause to support the allegations of a charge after an investigation of the charge in accordance with § 20-13-28, the division shall issue an order dismissing the charge. This shall be considered a final agency action for purposes of appeal under chapter 1-26.

Source: SL 1989, ch 184, § 3.


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

Source: SL 1972, ch 11, § 11 (1); SL 1978, ch 153, § 6; SL 1981, ch 166, § 7.


20-13-30 Charge by employer or organization against employees or members.
     20-13-30.   Charge by employer or organization against employees or members. Any place of public accommodation, employer, labor organization, or person who has employees or members who refuse to comply with the provisions of this chapter may file with the Division of Human Rights a verified written charge asking the division for assistance to obtain compliance by conciliation or other remedial action.

Source: SL 1972, ch 11, § 11 (2); SL 1978, ch 153, § 7; SL 1981, ch 166, § 8.


20-13-31 Time for filing 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.

Source: SL 1972, ch 11, § 11 (15); SL 1981, ch 166, § 9.


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

Source: SL 1972, ch 11, § 11 (3); SL 1981, ch 166, § 10; SL 1987, ch 29, § 25.


20-13-32.1
     20-13-32.1.   Repealed by SL 2000, ch 94, § 1


20-13-32.2 Investigative materials confidential--Access to material by parties following determinatio...
     20-13-32.2.   Investigative materials confidential--Access to material by parties following determination. Prior to the issuance of a determination under § 20-13-1.1, 20-13-28.1, or 20-13-32, information and materials regarding a charge of discrimination obtained by an investigating official are confidential. Notwithstanding §§ 1-27-29 to 1-27-32, inclusive, after the issuance of a 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.

Source: SL 2002, ch 98, § 1; SL 2004, ch 144, § 1.


20-13-33
     20-13-33.   Repealed by SL 1977, ch 184


20-13-34 Notice to respondent to answer charge--Time for answer.
     20-13-34.   Notice to respondent to answer charge--Time for answer. In case of failure to satisfactorily settle a charge by conference or conciliation, or in advance thereof if circumstances so warrant, the official may issue a written notice together with a copy of the charge, as the same may have been amended, requiring the person, employer, employment agency, or labor organization named in the charge, hereafter referred to as respondent, to answer the charge in writing within ten days after the date of the notice or within extended time the investigating official may allow.

Source: SL 1972, ch 11, § 11 (5); SL 1981, ch 166, § 11.


20-13-35 Notice to answer charge after investigating official's report--Time for hearing--Hearing e...
     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 § 20-13-35.1.

Source: SL 1972, ch 11, § 11 (6); SL 1981, ch 166, § 12; SL 1991, ch 179, § 18.


20-13-35.1 Right to proceed by civil action in lieu of hearing--Forms of relief available.
     20-13-35.1.   Right to proceed by civil action in lieu of hearing--Forms of relief available. No later than twenty days after the issuance of notice requiring the respondent to answer the charge, the charging party or the respondent may elect to have the claims asserted in the charge decided in a civil action, in lieu of a hearing, under the provisions of this section. Any civil action shall be filed within one year of such election. Upon receipt of notice of election, the Division of Human Rights or the Commission of Human Rights has no further jurisdiction over the parties concerning the charge filed. The Division of Human Rights or the Commission of Human Rights shall notify the parties in writing of the election and of the one year limitation period in which to file a civil action. The limitation period in which to file a civil action begins on the date of the notice of election. In a civil action, if the court or jury finds that an unfair or discriminatory practice has occurred, it may award the charging party compensatory damages. The court may grant as relief any injunctive order, including affirmative action, to effectuate the purpose of this chapter. Punitive damages may be awarded under § 21-3-2 for a violation of §§ 20-13-20 to 20-13-21.2, inclusive, 20-13-23.4, 20-13-23.7, or 20-13-26. Attorneys' fees and costs may be awarded to the prevailing party for housing matters.

Source: SL 1991, ch 179, § 20; SL 2004, ch 144, § 2.


20-13-36 Administration of oaths--Depositions.
     20-13-36.   Administration of oaths--Depositions. The commission, any commissioner, or any investigator, agent, or hearing examiner appointed by the division is empowered to administer oaths, and take depositions as provided by §§ 1-26-19.1 and 1-26-19.2.

Source: SL 1972, ch 11, § 5 (4); SL 1973, ch 142, § 6.


20-13-37 Evidence rules inapplicable at hearings--Cross-examination--Burden of proof--Preservation ...
     20-13-37.   Evidence rules inapplicable at hearings--Cross-examination--Burden of proof--Preservation of testimony. The Commission of Human Rights is not bound by the strict rules of evidence prevailing in courts of law or equity but the right of cross-examination shall be preserved. The charging party bears the burden of proving by a preponderance of the evidence the allegations in his charge. The testimony taken at a hearing shall be under oath, electronically recorded, or stenographically reported, or both by a commission agent, and transcribed, if ordered by the commission.

Source: SL 1972, ch 11, § 11 (11); SL 1975, ch 166, § 1; SL 1981, ch 166, § 13.


20-13-38 Presentation of case--Investigating official's participation limited.
     20-13-38.   Presentation of case--Investigating official's participation limited. The case in support of the charge may be presented at the hearing by one of the division's attorneys or agents. The investigating official may not participate in the hearing except as a witness nor may he participate in the deliberations of the Commission of Human Rights in the case.

Source: SL 1972, ch 11, § 11 (7); SL 1978, ch 153, § 8; SL 1979, ch 156; SL 1981, ch 166, § 14.


20-13-39 Respondent's answer and appearance at hearing--Charging party's intervention.
     20-13-39.   Respondent's answer and appearance at hearing--Charging party's intervention. The respondent may file a written verified answer to the charge, and may appear at the hearing in person, with or without counsel, and submit testimony. In the discretion of the hearing examiner, a charging party may be allowed to intervene and present testimony in person or by counsel.

Source: SL 1972, ch 11, § 11 (8); SL 1981, ch 166, § 15.


20-13-40 Amendment of charge or answer.
     20-13-40.   Amendment of charge or answer. The Division of Human Rights or the charging party may reasonably and fairly amend any charge. The respondent may also amend his answer.

Source: SL 1972, ch 11, § 11 (10); SL 1981, ch 166, § 16.


20-13-41 Proceedings on default by respondent.
     20-13-41.   Proceedings on default by respondent. When a respondent has failed to answer a charge at a hearing as provided by § 20-13-39 the Commission of Human Rights may enter his default. For good cause shown, the commission may set aside an entry of default within ten days after the date of the entry. If the respondent is in default, the commission may proceed to hear testimony adduced upon behalf of the charging party. After hearing testimony, the commission may enter any order the evidence warrants.

Source: SL 1972, ch 11, § 11 (9); SL 1981, ch 166, § 17.


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

Source: SL 1972, ch 11, § 11 (12); SL 1991, ch 179, § 19.


20-13-43 Finding of no discriminatory or unfair practice--Dismissal of charge.
     20-13-43.   Finding of no discriminatory or unfair practice--Dismissal of charge. If, upon taking into consideration all of the evidence at a hearing, the Commission of Human Rights finds that a respondent has not engaged in such discriminatory or unfair practice, the commission shall state its findings of fact and serve an order dismissing the charge on the charging party and the respondent.

Source: SL 1972, ch 11, § 11 (13); SL 1981, ch 166, § 18.


20-13-44 Majority of commission required for final orders.
     20-13-44.   Majority of commission required for final orders. All final orders of the Commission of Human Rights shall be concurred in by at least a majority of the total membership of the commission.

Source: SL 1972, ch 11, § 12; SL 1981, ch 166, § 19.


20-13-45 Procedural rules.
     20-13-45.   Procedural rules. The commission shall establish rules to govern, expedite, and effectuate the procedures established by this chapter and its own actions thereunder.

Source: SL 1972, ch 11, § 11 (14).


20-13-46 Rules governed by general law on administrative rules.
     20-13-46.   Rules governed by general law on administrative rules. All rules of practice under formal and informal procedures herein provided and all rules and regulations promulgated by the commission shall be in accordance with chapter 1-26.

Source: SL 1972, ch 11, § 17.


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

Source: SL 1972, ch 11, § 13 (1); SL 1981, ch 166, § 20; SL 1989, ch 184, § 4; SL 1991, ch 179, §§ 21, 22.


20-13-48
     20-13-48 to 20-13-51.   Repealed by SL 1989, ch 184, §§ 5 to 8


20-13-52 Commission's appearance by attorney--Supervision--Exception in action against governmental...
     20-13-52.   Commission's appearance by attorney--Supervision--Exception in action against governmental agency. The commission may appear in court by its own attorney who shall be subject to the supervision, control, and direction of the attorney general, except that the commission's attorney shall not be subject to the supervision, control, and direction of the attorney general where one of the parties to the court action is a political subdivision or agency of the State of South Dakota and that political subdivision or agency is represented by the attorney general.

Source: SL 1972, ch 11, § 13 (5); SL 1973, ch 142, § 8.


20-13-53
     20-13-53.   Repealed by SL 1982, ch 16, § 18


20-13-54 Broad construction of chapter.
     20-13-54.   Broad construction of chapter. This chapter shall be construed broadly to effectuate its purposes.

Source: SL 1972, ch 11, § 14.


20-13-55 Severability of provisions.
     20-13-55.   Severability of provisions. If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the invalidity does not affect the other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

Source: SL 1972, ch 11, § 18.


20-13-56 Citation of chapter.
     20-13-56.   Citation of chapter. This chapter may be known and may be cited as the "South Dakota Human Relations Act of 1972."

Source: SL 1972, ch 11, § 1.


Title 20

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