ARTICLE 20:03
\r\n\r\n\r\nHUMAN RIGHTS
\r\n\r\n\r\n\r\nChapter
\r\n\r\n20:03:01 Administration.
\r\n\r\n20:03:02 Charges.
\r\n\r\n20:03:03 Investigation.
\r\n\r\n20:03:04 Findings.
\r\n\r\n20:03:05 Answers\r\nand hearings.
\r\n\r\n20:03:06 Orders.
\r\n\r\n20:03:07 General\r\ncommission policies.
\r\n\r\n20:03:08 Tests.
\r\n\r\n20:03:09 Discrimination\r\nbecause of sex.
\r\n\r\n20:03:10 Discrimination\r\nbecause of religion or creed.
\r\n\r\n20:03:11 Discrimination\r\nbecause of origin or ancestry.
\r\n\r\n\r\n\r\nCHAPTER 20:03:01
\r\n\r\n\r\nADMINISTRATION
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:01:01 Definitions.
\r\n\r\n20:03:01:02 Submission\r\nof information.
\r\n\r\n20:03:01:03 Nondisclosure.
\r\n\r\n20:03:01:04 Issuance,\r\namendment, or repeal of rules.
\r\n\r\n20:03:01:05 Declaratory\r\nrules.
\r\n\r\n\r\n\r\n20:03:01:01. Definitions. Terms defined in SDCL 20-13-1, the South Dakota Human Relations Act of 1972, have the same meanings in this article. In addition, terms used in this article mean:
\r\n\r\n\r\n(1) "Respondent,"\r\nthe person against whom a charge is made;
\r\n\r\n(2) "Charging\r\nparty," the person filing a charge;
\r\n\r\n(3) "Investigating\r\nofficial," the person investigating the charge;
\r\n\r\n(4) "Duly authorized\r\nagent," any person specially designated by the commission or the director\r\nof human rights;
\r\n\r\n(5) "Act", the\r\nSouth Dakota Human Relations Act of 1972.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:01:02. Submission of information. If information\r\nreceived by a commissioner or the division discloses that a person is entitled\r\nto file a charge, the commissioner or the division shall assist that person in\r\nfiling. A member of the commission, a state's attorney, or the attorney general\r\nmay file a charge \r\nverified according to the best of his/her knowledge, information,\r\nand belief. Those commissioners who are involved in initiating a charge under\r\nthis section shall not participate in any further proceeding concerning that\r\ncharge except as authorized by SDCL 1-26.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-29.
\r\n\r\n\r\n20:03:01:03. Nondisclosure. Information and charges\r\nforwarded to the division of human rights by the United States equal employment\r\nopportunity commission shall not be disclosed under the following\r\ncircumstances:
\r\n\r\n\r\n(1) Pursuant to Section\r\n709(d) of Title VII of the Civil Rights Act of 1964 as amended, EEOC reports filed by employers, employment agencies, and\r\nlabor organizations and furnished to the division by the equal employment\r\nopportunity commission shall not be made public by the division prior to the\r\ninstitution of a public hearing;
\r\n\r\n\r\n(2) Pursuant to section\r\n709(e) of Title VII of the Civil Rights Act of 1964, any investigative\r\ninformation obtained by the EEOC and forwarded to the\r\ndivision shall not be made public prior to the filing of a suit under Title\r\nVII;
\r\n\r\n\r\n(3) Pursuant to Section\r\n706(b)(c) of Title VII of the Civil Rights Act of 1964\r\nand SDCL 20-13-8 the division may accept charges filed with the EEOC and forwarded to the division. In all charges forwarded by the EEOC the division shall not make public the filing of the charge nor anything said or done during informal proceedings of conference, conciliation, and persuasion without the written consent of the parties and the EEOC.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 4 SDR 31, effective\r\nDecember 4, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented: SL 1977, ch 184.
\r\n\r\n\r\n20:03:01:04.Issuance, amendment, or repeal of rules.\r\nAny interested person petitioning the commission for the issuance, amendment,\r\nor repeal of any rule or regulation shall file an original and nine legibly\r\nduplicated (not carbon) copies of the petition with the division in Pierre,\r\nSouth Dakota.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-27, 20-13-45, 20-13-46.
\r\n\r\n\r\nCommission\r\nNote: Portions of this rule have been superseded by SDCL 1-26-13 which provides a statutory procedure to use for petitioning an agency for amendments to its rules.
\r\n\r\n\r\n20:03:01:05. Declaratory rules. Any interested person may\r\npetition the commission, in writing, for the issuance of a declaratory ruling\r\nas to the applicability of any statutory provision or any rule or order of the\r\ncommission. An original and nine legibly duplicated (not carbon) copies of the\r\npetition shall be filed with the division in Pierre, South Dakota. The petition\r\nshall state the factual situation and the statute, rule, or order, to which the\r\nsituation applies, together with a statement of the grounds in support of and\r\nin opposition to the petitioner's position.
\r\n\r\n\r\nUpon the filing of the petition, the\r\ncommission shall consider and dispose of the petition within 30 days after its\r\nnext meeting by issuing a ruling. If the commission determines after a review\r\nof the petition and any supporting argument or information that there\r\nexists any question of fact, the petition shall be referred to the division for\r\nprocessing as a charge. If the commission determines after such a review that\r\nthere exists no genuine fact, it shall issue a ruling either granting or\r\ndenying the petition in whole or in part or make other disposition of the\r\npetition. Prompt notice of any action taken shall be given to the petitioner.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 5 SDR 27, effective\r\nOctober 17, 1978; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-15, 20-13-27, 20-13-45, 20-13-46.
\r\n\r\n\r\nCHAPTER 20:03:02
\r\n\r\n\r\nCHARGES
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:02:01 Charge by aggrieved person, by\r\norganization against employees or members, or by public official.
\r\n\r\n20:03:02:02 Withdrawal\r\nof charge.
\r\n\r\n20:03:02:03 Contents\r\n-- Amendment.
\r\n\r\n20:03:02:04 Charge\r\nforwarded by the United States equal employment opportunity commission.
\r\n\r\n\r\n\r\n20:03:02:01. Charge by aggrieved person, by organization\r\nagainst employees or members, or by public official. A charge shall be\r\nconsidered filed when received by the division of human rights, a commissioner,\r\nor by any duly authorized agent of the division.
\r\n\r\n\r\nThe charge shall be in writing and\r\nsigned and shall be verified. Forms for charges shall be made available to all\r\npersons from the division of human rights in Pierre, South Dakota, or from any\r\nmember of the commission.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 17, 1977; 5 SDR 27, effective\r\nOctober 17, 1978; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-29.
\r\n\r\n\r\n20:03:02:02. Withdrawal of charge. A charge filed by an\r\naggrieved person or by an organization may be withdrawn only upon written\r\nrequest of the charging party and only with the consent of the division or its\r\nduly authorized agent.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 5 SDR 27, effective\r\nOctober 17, 1978; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-29.
\r\n\r\n\r\n20:03:02:03. Contents -- Amendment. Each charge shall\r\ncontain the following:
\r\n\r\n\r\n(1) The full name, address,\r\nand telephone number of the person making the charge;
\r\n\r\n\r\n(2) A clear and concise\r\nstatement of the facts, including pertinent dates, constituting the alleged\r\nunfair or discriminatory practice.
\r\n\r\n\r\nNotwithstanding the provisions of\r\nsubdivisions (1) and (2) of this section, a charge is sufficient when the\r\ndivision receives from the person aggrieved a written statement sufficiently\r\nprecise to identify the parties and to describe generally the action or\r\npractices complained of. A charge may be amended to cure technical defects or\r\nomissions, including failure to swear to the charge; to clarify or amplify\r\nallegations made in the charge; to add, remove, or change a party; or if the\r\npurposes of the Act will be served by amendment, and such amendments shall\r\nrelate back to the original filing date. All such amended charges shall be\r\nserved immediately upon the respondent after receipt. However, an amendment\r\nalleging additional acts constituting unfair or discriminatory practices not\r\ndirectly related to or growing out of the subject matter of the original charge\r\nmay be permitted only where at the date of the amendment the allegation could\r\nhave been timely filed as a separate charge.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:02:04. Charge forwarded by the United States equal\r\nemployment opportunity commission. The division may accept charges of\r\nunlawful employment discrimination filed within 180 days of the alleged\r\ndiscriminatory act with the United States equal employment opportunity\r\ncommission and transmitted by registered mail by the United States equal\r\nemployment opportunity commission to the division, as long as such charges\r\nallege an unfair or discriminatory practice within the meaning of SDCL 20-13, are under the jurisdiction of the Act, are filed within 180 days of the alleged discriminatory act with the division, and otherwise comply with SDCL 20-13. Receipt of the charge in the office of the equal employment opportunity commission shall constitute the filing of the charge with the division of human rights.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 5 SDR 27, effective\r\nOctober 17, 1978; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-8, 20-13-29, 20-13-31; 42 U.S.C. 2000e-5(c).
\r\n\r\n\r\nCHAPTER 20:03:03
\r\n\r\n\r\nINVESTIGATION
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:03:01 Investigation\r\nof charge.
\r\n\r\n20:03:03:02 Documentary\r\nevidence to be produced by respondent.
\r\n\r\n20:03:03:03 Charging\r\nparty's responsibility during investigation.
\r\n\r\n\r\n\r\n20:03:03:01. Investigation of charge. During the course\r\nof the investigation, the division may utilize the services of federal, state\r\nand local agencies which are charged with the administration of comparable\r\nhuman relations laws or ordinances. The division reserves all right to process\r\ncharges under the Act.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:03:02. Documentary evidence to be produced by\r\nrespondent. Whenever possible the investigating official shall obtain\r\ndocumentary evidence and statements from parties and witnesses by voluntary\r\ncompliance. If there is noncompliance with any such request or if, in the\r\nopinion of the investigating official, the situation warrants it, the director\r\nof the division or any commissioner may subpoena parties and witnesses to\r\nappear and give testimony and to produce any records, books, papers, and\r\ndocuments; may require written interrogatories of parties; and may utilize any\r\nother discovery procedure authorized by South Dakota laws governing discovery\r\nin a civil proceeding. If written interrogatories are requested, they shall be\r\ncompleted and returned within the time frame established in SDCL 15-6-33 (a), (b) and (c). For good cause, the investigating official may grant an extension of time for the completion and return. Since this investigation is conducted pursuant to SDCL 20-13-32 and for the purpose of determining whether probable cause exists, notice of discovery proceedings to parties is not required.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 5 SDR 27, effective\r\nOctober 17, 1978; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\nCross-Reference:\r\nCivil procedure -- Discovery, SDCL 15-6-26 to 15-6-37, inclusive.
\r\n\r\n\r\n20:03:03:03. Charging party's responsibility during\r\ninvestigation. The charging party shall keep the division advised in\r\nwriting of the charging party's current address and telephone number while the\r\ncharge is pending. If a charging party fails to comply with this requirement,\r\nthe division may terminate any proceedings related to that charge by sending a\r\nletter of intent to terminate to the charging party's last known address by\r\ncertified or registered mail 30 days prior to termination.
\r\n\r\n\r\nSource:\r\n5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective\r\nJuly 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-45.
\r\n\r\n\r\nCHAPTER 20:03:04
\r\n\r\n\r\nFINDINGS
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:04:01 Dismissal\r\nof charge.
\r\n\r\n20:03:04:01.01 Dismissal of charge filed with EEOC.
\r\n\r\n20:03:04:02 Finding of no\r\nprobable cause.
\r\n\r\n20:03:04:03 Finding of\r\nprobable cause, conference, and conciliation.
\r\n\r\n20:03:04:04 Failure\r\nof charging party or respondent to participate in conciliation.
\r\n\r\n20:03:04:05 Conciliation\r\nagreement.
\r\n\r\n20:03:04:06 Violation\r\nof conciliation agreement.
\r\n\r\n20:03:04:07 Termination\r\nof proceedings without the consent of charging party.
\r\n\r\n20:03:04:08 Conciliation\r\nagreement not approved by the division.
\r\n\r\n20:03:04:09 Settlement\r\nwithout finding.
\r\n\r\n\r\n\r\n20:03:04:01. Dismissal of charge. If the allegations of a\r\ncharge on its face or as amplified by the statements of the charging party to\r\nthe investigating official disclose that the charge is not timely filed or when\r\nthe subject falls outside the jurisdiction of the Act or otherwise fails to\r\nstate a valid claim for relief under SDCL 20-13, the investigating official shall issue an order dismissing the charge without further investigation. The charging party and the respondent, if the charge has been served, shall be notified in writing of the disposition of the charge together with the reasons for dismissal.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:04:01.01. Dismissal of charge filed with EEOC. If a charge filed with the commission is also\r\nfiled with the Equal Employment Opportunity Commission (EEOC),\r\nthe investigating official shall enter an order dismissing the charge without\r\nany further investigation after receiving notice from the EEOC\r\nthat it has issued a right to sue to the charging party. Notice may be in the\r\nform of a copy of the EEOC right to sue or other\r\nforms of EEOC notice which are verified with the\r\ncharging party. The order must state the reason for the dismissal and must be\r\nserved on the charging party and the respondent.
\r\n\r\n\r\nSource:\r\n24 SDR 31, effective September 15, 1997.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27(2).
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-45.
\r\n\r\n\r\n20:03:04:02. Finding of no probable cause. If the\r\ninvestigating official, based upon the investigation, determines that there is\r\nnot probable cause to support the allegations of a charge, the investigating\r\nofficial shall issue an order dismissing the charge, accompanied by a statement\r\nof the underlying facts supporting such a decision and serve both on the\r\ncharging party and respondent. This finding shall be considered a final agency\r\naction for the purpose of appeal to the circuit court.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27,\r\neffective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority: SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:04:03. Finding of probable cause, conference, and\r\nconciliation. Both the charging party and the respondent shall be notified\r\nin writing of the finding of probable cause and the respondent shall be invited\r\nto participate in a conciliation conference for the purpose of attempting to\r\nresolve the matter informally. The respondent shall be given reasonable notice\r\nof the time and place of the conciliation conference. If the investigating\r\nofficial conducting the conciliation conference determines that the charging\r\nparty should be present, he or she shall also be given reasonable notice of the\r\ntime and place of the conciliation conference. The conciliation session shall\r\nbe devoted solely to the terms of the conciliation agreement.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:04:04. Failure of charging party or respondent to\r\nparticipate in conciliation. If the charging party is directed to appear at\r\nthe conciliation conference and fails or refuses to appear or participate for\r\nno good cause, the investigating official may dismiss the charge. If the\r\nrespondent fails or refuses to appear or participate in the conciliation\r\nconference, the investigating official may take those steps authorized by SDCL 20-13-34 and 20-13-35.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:04:05. Conciliation agreement. In conciliating a\r\ncase in which a determination of probable cause has been made, the\r\ninvestigating official shall attempt to achieve a just resolution and to obtain\r\nassurances that the respondent will eliminate the unfair or discriminatory\r\npractice and take appropriate affirmative action. Disposition of a case\r\npursuant to this section shall be in writing. The written agreement shall be\r\nsigned by the charging party, the respondent, and the investigating official. A\r\nnotice of settlement, together with a copy of the written agreement, shall be\r\nsent to the parties. Proof of compliance with SDCL 20-13 must be obtained by the investigating official before the case is closed.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:04:06. Violation of conciliation agreement. If the\r\ndivision determines that the respondent has violated or is violating the terms\r\nof settlement and adjustment, the division may seek enforcement according to\r\nthe terms of the agreement.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:04:07. Termination of proceedings without the consent\r\nof charging party. The investigating official may, without the consent of\r\nthe charging party, close the case, if, in the official's opinion, a written\r\nagreement signed by the respondent and the investigating official provides for\r\nthe elimination of the unfair or discriminatory practice, the elimination of\r\nthe effects of the unfair or discriminatory practice with respect to the\r\ncharging party, and appropriate affirmative action effectuating the purpose of\r\nthe Act.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:04:08. Conciliation agreement not approved by the\r\ndivision. If the terms of settlement and adjustment agreed to by the\r\nparties are not approved by the investigating official, the investigating\r\nofficial need not sign the written agreement and may close the case as having\r\nbeen settled on terms not approved by the investigating official. If this\r\noccurs, the division need not take any action if there is a violation of the\r\nterms of settlement and adjustment.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:04:09. Settlement without finding. As an\r\nalternative to performing a full investigation, the investigating official may\r\nattempt to resolve a charge without establishing fault. The resolution must be\r\nagreed to by all parties.
\r\n\r\n\r\nSource:\r\n5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective\r\nJuly 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\nCHAPTER 20:03:05
\r\n\r\n\r\nANSWERS AND HEARINGS
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:05:01 Scheduling\r\ncharge for hearing.
\r\n\r\n20:03:05:01.01 Parties'\r\nright to discovery.
\r\n\r\n20:03:05:01.02 Investigating official's\r\nreport.
\r\n\r\n20:03:05:02 Contents\r\nof answer -- Construed effect of omissions.
\r\n\r\n20:03:05:02.01 Further pleadings by\r\nthe parties and admissions.
\r\n\r\n20:03:05:03 Service\r\nof answer.
\r\n\r\n20:03:05:04 Notice to answer charge at hearing.
\r\n\r\n20:03:05:05 Amendment of charge or answer after\r\nhearing scheduled.
\r\n\r\n20:03:05:06 Consolidated\r\nhearing.
\r\n\r\n20:03:05:07 Conduct\r\nof hearings.
\r\n\r\n20:03:05:08 Settlement\r\nprior to recommended order and decision.
\r\n\r\n20:03:05:09 Representation\r\nat hearings.
\r\n\r\n\r\n\r\n20:03:05:01. Scheduling charge for hearing. The\r\ninvestigating official shall report to the commission when further effort to\r\nsettle a charge is futile, and the official shall give the commissioners copies\r\nof the original and any amended charges and the respondent's written answer\r\nsubmitted pursuant to SDCL 20-13-34. If no answer is received, the official shall include a certified mail receipt for a notice sent to the respondent requesting such an answer. After reviewing the investigating official's report and the charges and answers, the commission shall schedule the matter for a public hearing. The commission may not review the investigating official's file or ask substantive questions about the investigation prior to the hearing, except as necessary to rule on prehearing motions filed by the parties.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR\r\n31, effective September 15, 1997.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27(2)
\r\n\r\n\r\n\r\n\r\n20:03:05:01.01. Parties' right to discovery. At any time\r\nafter notice to answer the parties may use the discovery proceedings available\r\nunder the Administrative Procedures Act, SDCL chapter 1-26, and the Civil Rules Procedure in SDCL chapter 15-6. The investigating official shall obtain an authorization to disclose under SDCL 1-27-31(2) from the parties to allow the disclosure of the investigative file and shall provide copies to the parties and their counsel of record for the limited purpose of conducting the hearing.
\r\n\r\n\r\nSource:\r\n5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective\r\nJuly 1, 1986; 24 SDR 31, effective September 15,\r\n1997.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27(2).
\r\n\r\n\r\n\r\n\r\n20:03:05:01.02. Investigating official's\r\nreport.\r\nThe investigating official's report shall include the name of the parties; the\r\ntype of unfair or discriminatory practice alleged (e.g., employment\r\ndiscrimination on the basis of race, public accommodation discrimination on the\r\nbasis of disability); the fact that the investigating official made a probable\r\ncause determination; and a statement that further effort to settle the charge\r\nis futile.
\r\n\r\n\r\nSource:\r\n24 SDR 31, effective September 15, 1997.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27(2).
\r\n\r\n\r\n\r\n\r\n20:03:05:02. Contents of answer -- Construed effect of\r\nomissions. The original answer shall be in writing, with the original\r\nsigned under oath or affirmation by the respondent or the respondent's\r\nattorney, and shall contain the following:
\r\n\r\n\r\n(1) The correct name and\r\npost office address of the respondent;
\r\n\r\n(2) The correct name, post\r\noffice address, and telephone number of the respondent's attorney, if\r\nrespondent is represented by an attorney; and
\r\n\r\n(3) One of the following:
\r\n\r\n\r\n(a) A specific denial\r\nor admission of each allegation of the charge;
\r\n\r\n(b) A denial of any\r\nknowledge or information sufficient to form a belief; or
\r\n\r\n(c) A statement of any\r\nmatter constituting a defense against any allegation in the charge.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 5 SDR 27, effective\r\nOctober 17, 1978; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-35.
\r\n\r\n\r\n20:03:05:02.01. Further pleadings by the parties and admissions.\r\nFurther pleadings by the parties shall not be made unless the commission chair\r\nor the hearing examiner orders them for purposes of clarification of the\r\nissues. No admissions may be construed from lack of response. Any allegation in\r\nthe charge which is not denied or admitted in the answer, unless the respondent\r\nstates in the answer that he or she is without knowledge or information\r\nsufficient to form a belief, shall be deemed admitted.
\r\n\r\n\r\nSource:\r\n3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective\r\nJuly 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:05:03. Service of answer. One copy of the answer\r\nshall be served on all parties, the members of the commission, and the division\r\nby personal delivery or by certified or registered mail. An affidavit of\r\nmailing or service, copies of the receipts for delivery by certified or\r\nregistered mail, an admission of service, or other competent evidence shall\r\nsuffice as proof of service which shall be supplied to the investigating\r\nofficial at the time of the filing or within 10 days after the filing of the answer.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 3 SDR\r\n49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-34.
\r\n\r\n\r\n20:03:05:04. Notice to answer charge at hearing. If the\r\nmatter is scheduled for hearing under § 20:03:05:01, all parties shall be\r\ngiven prompt notice of the hearing. In addition to notice requirements provided\r\nby SDCL 1-26, the notice shall also contain the following:
\r\n\r\n\r\n(1) The name of the hearing\r\nexaminer who will conduct such hearing if one has been designated;
\r\n\r\n\r\n(2) A statement advising\r\nboth the charging party and the respondent of each party's right to be present\r\nand to be represented at the hearing in person, by an attorney, or both; and
\r\n\r\n\r\n(3) A statement advising\r\nthe respondent of his or her right to file an answer to the charge in\r\naccordance with § 20:03:05:01 unless the answer was filed prior to the\r\nnotice.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:05:05. Amendment of charge or answer after hearing\r\nscheduled. At any time before the close of the hearing, the charging party\r\nmay, by written request to the commission or to the hearing examiner, ask\r\npermission to amend the charge. The request shall specify the particular\r\namendments to the charge requested by the charging party and shall be served at\r\nthe same time on all parties to the proceedings. Requests to amend shall be\r\ngranted unless substantial harm to the respondent can be shown.
\r\n\r\n\r\nAt any time before the close of the\r\nhearing, the respondent may amend the answer to the original or amended charge.\r\nCopies of the respondent's request to amend and the particular amendments\r\nrequested shall be served at the same time on all parties to the proceedings.\r\nSuch requests shall be granted unless substantial harm to the charging party\r\ncan be shown.
\r\n\r\n\r\nAmended charges and amended answers\r\nshall conform to the requirements for charges and answers set forth in this\r\nchapter.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-40.
\r\n\r\n\r\n20:03:05:06. Consolidated hearing. Two or more\r\nproceedings against the same respondent arising out of the same set of\r\ncircumstances or two or more proceedings by the same charging party against two\r\nor more respondents arising out of the same set of circumstances may be\r\nconsolidated by the commission or the hearing examiner, in their discretion,\r\nfor the purposes of hearing.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-40.
\r\n\r\n\r\n20:03:05:07. Conduct of hearings. The hearing shall be\r\nconducted by the commission or a hearing examiner designated by the commission.
\r\n\r\n\r\nAll testimony taken at the hearing\r\nshall be under oath or affirmation.
\r\n\r\n\r\nThe commission or the hearing examiner\r\nshall arrange for electronic recording or stenographic reporting, or both, of\r\nthe proceedings of all hearings to be made by a commission agent. If ordered by\r\nthe commission or the hearing examiner, the record of the hearing shall be\r\ntranscribed.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-26, 20-13-36, 20-13-37, 20-13-38, 20-13-39, 20-13-41.
\r\n\r\n\r\n20:03:05:08. Settlement prior to recommended order and\r\ndecision. If, after issuance and service of a written notice of hearing but\r\nbefore the close of the hearing, the charging party and the respondent jointly\r\nnotify the commission or the hearing examiner in writing that they have agreed\r\nto terms of settlement and adjustment, all of which are set forth in detail in\r\nthe joint notification, the commission or the hearing examiner may order the\r\nscheduled hearing date postponed or the hearing recessed if it is already in\r\nprogress.
\r\n\r\n\r\nIf the terms of settlement and\r\nadjustment agreed to by the parties are approved by the commission or the\r\nhearing examiner, the commission or the hearing examiner shall have the terms\r\nof settlement and adjustment prepared in writing and signed by the parties and\r\nby the commission or the hearing examiner. The written agreement has the same\r\nstatus and effect as the executed written terms of settlement and adjustment\r\nunder §§ 20:03:04:05 and 20:03:04:06.
\r\n\r\n\r\nIf the terms of settlement and adjustment\r\nagreed to by the parties are not approved by the commission, it need not sign\r\nthe written agreement and may close the case as having been settled on terms\r\nnot approved by them. If this occurs, the commission need not seek enforcement\r\nif there is a violation of the terms of settlement and adjustment.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\n20:03:05:09. Representation at hearings. At hearings held\r\nbefore the commission, a commissioner, or a hearing examiner, representation\r\nshall be by individuals on their own behalf, by attorneys or other agents of\r\nthe division, or by attorneys licensed to practice law in South Dakota.\r\nOut-of-state attorneys appearing at a human rights hearing shall be introduced\r\nby an attorney licensed to practice law in South Dakota who must be present at\r\nall phases of the proceedings before the commission.
\r\n\r\n\r\nSource:\r\n5 SDR 27, effective October 17, 1978; 6 SDR 59, effective December 16, 1979; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-32.
\r\n\r\n\r\nCHAPTER 20:03:06
\r\n\r\n\r\nORDERS
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:06:01 Order\r\nand decision when commission conducts the hearing.
\r\n\r\n20:03:06:02 Order\r\nand decision when hearing examiner conducts the hearing.
\r\n\r\n20:03:06:03 Repealed.
\r\n\r\n\r\n\r\n20:03:06:01. Order and decision when commission conducts the\r\nhearing. In hearings before the commission, after the taking of testimony,\r\nthe hearing of oral argument, and the consideration of all the evidence, the\r\ncommission may request each party to submit written proposed findings of fact,\r\nconclusions of law, and order.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-35, 20-13-42, 20-13-43, 20-13-44.
\r\n\r\n\r\n20:03:06:02. Order and decision when hearing examiner\r\nconducts the hearing. In hearings conducted by a hearing examiner, after\r\nthe taking of testimony, the hearing of oral argument, and the consideration of\r\nall the evidence, the hearing examiner may request each party to submit written\r\nproposed findings of fact, conclusions of law, and order.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, effective November 3, 1975; 3 SDR 49, effective\r\nJanuary 18, 1977; 12 SDR 151, 12 SDR\r\n155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-18.1, 20-13-35, 20-13-42, 20-13-43.
\r\n\r\n\r\n20:03:06:03. Review of recommended order and decision.Repealed.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 2 SDR\r\n31, repealed November 3, 1975.
\r\n\r\n\r\nCHAPTER 20:03:07
\r\n\r\n\r\nGENERAL COMMISSION POLICIES
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:07:01 Purpose\r\nof regulations.
\r\n\r\n20:03:07:02 Protected class defined.
\r\n\r\n20:03:07:03 Purpose\r\nof the act.
\r\n\r\n20:03:07:04 Recruitment.
\r\n\r\n20:03:07:05 Discharges.
\r\n\r\n\r\n\r\n20:03:07:01. Purpose of regulations. Chapters 20:03:07 to\r\n20:03:11, inclusive, are interpretations by the commission of the South Dakota\r\nHuman Relations Act of 1972, SDCL 20-13, as it covers employment. These rules will be used to determine the commission's treatment of individual employment cases as they arise.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:07:02. Protected class defined. The term\r\n"protected class" as used in chapters 20:03:07 to 20:03:11,\r\ninclusive, means a class of persons of the same race, color, creed, religion,\r\nsex, national origin, disability, or ancestry.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986; 24 SDR 31, effective September 15, 1997.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(16), 20-13-10, 20-13-11, 20-13-12, 20-13-13.
\r\n\r\n\r\n20:03:07:03. Purpose of the act.SDCL 20-13 was enacted to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of employees over other employees. Discriminatory preference for any group, minority or majority, is proscribed.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12, 20-13-13.
\r\n\r\n\r\n20:03:07:04. Recruitment. Every employer must conduct\r\nrecruitment and hiring practices to assure that all potential applicants are\r\ngiven fair notice of job vacancies, opportunity to apply for vacancies, and\r\nconsideration for employment in all vacancies on bases which do not\r\ndiscriminate on grounds prohibited by law. Hiring and job assignment practices\r\nmust assure that the effect of past exclusion of a protected class is not\r\ncarried forward into the future.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10, 20-13-12.
\r\n\r\n\r\n20:03:07:05. Discharges. It is sufficient to find\r\ndiscrimination in a discharge case if race, sex, or another proscribed category\r\nplayed any causal part in the discharge of the employee. It is not necessary\r\nthat race, sex, or another proscribed category be the sole cause of the\r\ndischarge.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10, 20-13-12.
\r\n\r\n\r\nCHAPTER 20:03:08
\r\n\r\n\r\nTESTS
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:08:01 Test defined.
\r\n\r\n20:03:08:01.01 Validity\r\ndefined.
\r\n\r\n20:03:08:02 Discrimination through use of tests\r\ndefined.
\r\n\r\n20:03:08:03 Continued\r\nuse of unvalidated tests.
\r\n\r\n20:03:08:04 Employment\r\nagencies and employment services.
\r\n\r\n20:03:08:05 Disparate\r\ntreatment.
\r\n\r\n20:03:08:06 Retesting.
\r\n\r\n\r\n\r\n20:03:08:01. Test defined. As used in §§ 20:03:08:01\r\nto 20:03:08:06, inclusive, the term "test" means any paper-and-pencil\r\nor performance measure used as a basis for an employment decision. The rules in\r\nchapter 20:03:08 apply to, but are not limited to, ability tests which are\r\ndesigned to measure eligibility for hire, transfer, promotion, membership,\r\ntraining, referral, or retention. The term includes, but is not restricted to,\r\nmeasures of general intelligence, mental ability, and learning ability; specific\r\nintellectual abilities; mechanical, clerical, and other aptitudes; dexterity\r\nand coordination, knowledge, and proficiency; occupational and other interests;\r\nand attitudes, personality, or temperament. The term includes all formal,\r\nscored, quantified or standardized techniques of assessing job suitability\r\nincluding, in addition to the above, specific qualifying or disqualifying\r\npersonal history or background requirements, specific educational or work\r\nhistory requirements, scored interviews, biographical information blanks,\r\ninterviewers' rating scales, and scored application forms.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-27-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12, 20-13-15.
\r\n\r\n\r\n20:03:08:01.01. Validity defined. As used in\r\n§§ 20:03:08:02 to 20:03:08:06, inclusive, the term "validity"\r\nmeans the established statistical relationship between a test instrument or\r\nother selection procedure and performance on the job.
\r\n\r\n\r\nSource:\r\n6 SDR 59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective\r\nJuly 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-1(14), 20-13-10 to 20-13-12, 20-13-15.
\r\n\r\n\r\n20:03:08:02. Discrimination through use of tests defined.\r\nThe use of a test which adversely affects hiring, promotion, transfer, or any\r\nother employment or membership opportunity of classes protected by the act\r\nconstitutes discrimination unless the test has been validated and conforms to\r\nthe guidelines on employee selection procedures issued by the U.S. equal\r\nemployment opportunity commission, 29 C.F.R. 1607\r\n(September 25, 1978), and the person giving a particular test or acting upon\r\nthe results of that test can demonstrate that alternative suitable hiring,\r\ntransfer, or promotion procedures are unavailable for his use.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 6 SDR\r\n59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-1(14), 20-13-10, 20-13-12, 20-13-15.
\r\n\r\n\r\n20:03:08:03. Continued use of unvalidated\r\ntests. If determination of validity in a specific setting is practicable\r\nand required but not yet obtained, the use of the test may continue provided\r\nthe person can establish validity as described in the guidelines on employee\r\nselection procedures issued by the U.S. equal employment opportunity\r\ncommission, 29 C.F.R. 1607 (September 25, 1978), and\r\nhe has in progress validation procedures which are designed to produce the\r\nadditional data required.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 6 SDR\r\n59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:08:04. Employment agencies and employment services.\r\nEmployment agencies and employment services, both private and state shall do\r\nthe following:
\r\n\r\n\r\n(1) Not make applicant or\r\nemployee appraisals or referrals based on the results obtained from a psychological\r\ntest or other selection standard not validated in accordance with this chapter;
\r\n\r\n\r\n(2) When requested by an\r\nemployer or union to devise a testing program, follow the standards for test\r\nvalidation as set forth in this chapter. An employment service is not relieved\r\nof its obligation because the test user did not request validation or has\r\nrequested the use of some lesser standard than is provided in this chapter; and
\r\n\r\n\r\n(3) If requested to\r\nadminister a testing program which has been devised elsewhere, request evidence\r\nof validation, as described in this chapter, before it administers the testing\r\nprogram or makes referral pursuant to the test results, or both. The employment\r\nagency or service must furnish to the commission, on request, evidence of validation.\r\nAn employment agency or service shall refuse to administer a test where the\r\nemployer or union does not supply satisfactory evidence of validation. Reliance\r\nby the test user on the reputation of the test, its author, or the name of the\r\ntest is not sufficient evidence of validity. An employment agency or service\r\nmay administer a testing program where the evidence of validity comports with\r\nthe standards provided in § 20:03:08:03.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:08:05. Disparate treatment. A test or other\r\nemployee selection standard, even though validated against job performance in\r\naccordance with this chapter, may not be imposed upon any individual or class\r\nprotected by SDCL 20-13 if other employees, applicants, or members have not been subjected to that standard. Those employees or applicants who have been denied equal treatment because of prior discriminatory practices or policies must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:08:06. Retesting. Employers, unions, and employment\r\nagencies must provide an opportunity for retesting and reconsideration to\r\ncandidates who failed earlier who have availed themselves of more training or\r\nexperience.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10, 20-13-11, 20-13-12, 20-13-15.
\r\n\r\n\r\nCHAPTER 20:03:09
\r\n\r\n\r\nDISCRIMINATION BECAUSE OF SEX
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:09:01 Construction\r\nof terms "employer" and "employers."
\r\n\r\n20:03:09:02 Sex\r\nas a bona fide occupational qualification.
\r\n\r\n20:03:09:03 Effect\r\nof sex-orientated federal employment legislation.
\r\n\r\n20:03:09:04 Separate lines of progression and\r\nseniority systems.
\r\n\r\n20:03:09:05 Distinction\r\nbetween light and heavy jobs.
\r\n\r\n20:03:09:06 Discrimination\r\nagainst married persons.
\r\n\r\n20:03:09:07 Job\r\nopportunities advertising.
\r\n\r\n20:03:09:08 Employment\r\nagencies dealing with only one sex.
\r\n\r\n20:03:09:09 Employment\r\nagencies' responsibilities in filling job orders.
\r\n\r\n20:03:09:10 Preemployment inquiries about sex.
\r\n\r\n20:03:09:11 Fringe\r\nbenefits.
\r\n\r\n20:03:09:12 Employment\r\npolicies relating to pregnancy and childbirth.
\r\n\r\n\r\n\r\n20:03:09:01. Construction of terms "employer" and\r\n"employers." The terms "employer" or\r\n"employers" in this chapter include labor organizations, employment\r\nagencies, and other persons insofar as their action or inaction adversely\r\naffects employment opportunities.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12, 20-13-26.
\r\n\r\n\r\n20:03:09:02. Sex as a bona fide occupational qualification.\r\nBona fide occupational qualification exceptions shall be interpreted narrowly.
\r\n\r\n\r\nThe refusal to hire an individual\r\nbased on stereotyped characteristics of the sexes or because of the preferences\r\nof coworkers, the employer, or clients or customers are not bona fide\r\noccupational qualification exceptions. Sex is considered to be a bona fide\r\noccupational qualification if it is necessary for the purpose of authenticity\r\nor genuineness.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-1(14), 20-13-10.
\r\n\r\n\r\n20:03:09:03. Effect of sex-orientated federal employment\r\nlegislation. Where the federal occupational, safety and health act requires\r\nthat separate restrooms be provided for employees of each sex, an employer is\r\nconsidered to have engaged in unlawful employment practice if he or she refuses\r\nto hire or otherwise adversely affects the employment opportunities of\r\napplicants or employees in order to avoid the provision of that act.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10.
\r\n\r\n\r\n20:03:09:04. Separate lines of progression and seniority\r\nsystems. Employers may not classify a job as a male or female job or\r\nmaintain separate lines of progression or separate seniority lists based on sex\r\nif this adversely affects any employee unless sex is a bona fide occupational\r\nqualification for that job.
\r\n\r\n\r\nEmployers may not arbitrarily classify\r\njobs so that a female is prohibited from applying for a job labeled\r\n"male" or for a job in a male line of progression and vice versa or\r\nso that a male scheduled for layoff is prohibited from displacing a less senior\r\nfemale on a female seniority list and vice versa.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10, 20-13-12, 20-13-16, 20-13-17.
\r\n\r\n\r\n20:03:09:05. Distinction between light and heavy jobs. A\r\nseniority system or line of progression which distinguishes between light and\r\nheavy jobs constitutes an unlawful employment practice if it operates a\r\ndisguised form of classification by sex or creates unreasonable obstacles to\r\nthe advancement by members of either sex into jobs which members of that sex\r\ncould reasonably be expected to perform.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10, 20-13-12, 20-13-16, 20-13-17.
\r\n\r\n\r\n20:03:09:06. Discrimination against married persons.An employer's rule which forbids or restricts the employment of\r\nmarried women and which is not applicable to married men or vice versa is\r\ndiscrimination based on sex prohibited by SDCL 20-13.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10.
\r\n\r\n\r\n20:03:09:07. Job opportunities advertising. Help wanted\r\nadvertisements may not indicate a preference, limitation, specification, or\r\ndiscrimination based on sex unless sex is a bona fide occupational\r\nqualification for the particular job involved. The placement of an\r\nadvertisement in columns classified by publishers on the basis of sex, such as\r\ncolumns headed male or female, is an expression of a preference, limitation,\r\nspecification, or discrimination based on sex. The classification of columns by\r\npublishers on the basis of sex is a violation of SDCL 20-13.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10, 20-13-11, 20-13-13, 20-13-26.
\r\n\r\n\r\n20:03:09:08. Employment agencies dealing with only one sex.\r\nPrivate employment agencies which deal exclusively with one sex are engaged in\r\nan unlawful employment practice except\r\nto the extent that such agencies limit their services to furnishing employees\r\nfor particular jobs for which sex is a bona fide occupational qualification.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-11.
\r\n\r\n\r\n20:03:09:09. Employment agencies' responsibilities in filling\r\njob orders.An employment agency that receives a job\r\norder containing an unlawful sex specification shares responsibility with the\r\nemployer placing the job order if the agency fills the order knowing that the\r\nsex specification is not based upon a bona fide occupational qualification.\r\nHowever, an employment agency is not considered to be in violation of the law\r\nif the agency maintains a written record of the job order and makes it\r\navailable to the commission. The record shall include the name of the employer,\r\nthe description of the job, and the basis for the employer's claim of bona fide\r\noccupational qualification.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-11.
\r\n\r\n\r\n20:03:09:10. Preemployment\r\ninquiries about sex. A preemployment inquiry in\r\nconnection with prospective employment which expresses directly or indirectly\r\nany limitation, specification, or discrimination concerning sex is unlawful\r\nunless it is based upon a bona fide occupational qualification.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10.
\r\n\r\n\r\n20:03:09:11. Fringe benefits. The term "fringe\r\nbenefits," as used in this section includes medical, hospital, accident,\r\nlife insurance, and retirement benefits; profit-sharing and bonus plans; leave;\r\nand other terms, conditions, and privileges of employment. No employer may do\r\nthe following:
\r\n\r\n\r\n(1) Discriminate between\r\nmen and women with regard to fringe benefits. An employer may not condition\r\nbenefits available to employees and their spouses and families based on the\r\nstatus of the employee as head of the household or principal wage earner in the\r\nfamily unit;
\r\n\r\n\r\n(2) Make available benefits\r\nfor the wives and families of male employees if the same benefits are not made\r\navailable for the husbands and families of female employees, make available\r\nbenefits for the wives of male employees which are not made available for\r\nfemale employees, or make available benefits for the husbands of female\r\nemployees which are not made available for male employees;
\r\n\r\n\r\n(3) Have a pension or\r\nretirement plan which establishes different optional or compulsory retirement\r\nages based on sex or which differentiates in benefits on the basis of sex.
\r\n\r\n\r\nIt is not a defense under SDCL 20-13 to a charge of sex discrimination concerning benefits that the cost of such benefits is greater for one sex than the other.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\n\r\n\r\n\r\n20:03:09:12. Employment policies relating to pregnancy and\r\nchildbirth. Written or unwritten employment policies and practices, except\r\nfor insurance, shall be applied to pregnancy and childbirth on the same terms\r\nand conditions as they are applied to other temporary disabilities. No employer\r\nshall provide for child care leave which discriminates on the basis of sex.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 6 SDR\r\n59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-1(14), 20-13-10, 20-13-12.
\r\n\r\n\r\nCourt\r\nDecisions: A rule which prohibited the exclusion of group health insurance\r\nbenefits for pregnancy and pregnancy-related disabilities to unmarried persons\r\nexceeded the statutory authority of the human rights commission to adopt rules,\r\nand an employer who provides such an insurance policy is not guilty of sex\r\ndiscrimination in violation of SDCL 20-13. (Opinion issued before the 1979 amendment of this section.)State, Division of Human Rights, ex rel. Ewing vs Prudential Insurance Company of America, 273 N.W. 2d 111 (Nov. 30, 1978).
\r\n\r\n\r\nA rule which prohibited the exclusion\r\nof benefits for pregnancy and pregnancy-related disabilities in a "single\r\nplan" group health insurance policy (as opposed to a "family\r\nplan" policy) exceeded the statutory authority of the human rights\r\ncommission to adopt rules, and an employer who provides such an insurance\r\npolicy is not guilty of sex discrimination in violation of SDCL 20-13-10. (Opinion issued before the 1979 amendment of this section.)State ex rel. Webb vs Pierre Independent School District No. 1, 272 N.W. 2d 306 (Dec. 7, 1978).
\r\n\r\n\r\nCHAPTER 20:03:10
\r\n\r\n\r\nDISCRIMINATION BECAUSE OF RELIGION OR\r\nCREED
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:10:01 Accommodation\r\nto employees' religious needs.
\r\n\r\n20:03:10:02 Burden\r\nof proof.
\r\n\r\n\r\n\r\n20:03:10:01. Accommodation to employees' religious needs.\r\nAn employer must make reasonable accommodations to the religious needs of\r\nemployees and prospective employees where such accommodations can be made\r\nwithout undue hardship on the conduct of the employer's business.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10.
\r\n\r\n\r\n20:03:10:02. Burden of proof. The employer has the burden\r\nof proving that an undue hardship makes the required accommodations to the\r\nreligious needs of the employee unreasonable.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 20-13-10.
\r\n\r\n\r\nCHAPTER 20:03:11
\r\n\r\n\r\nDISCRIMINATION BECAUSE OF ORIGIN OR\r\nANCESTRY
\r\n\r\n\r\n\r\nSection
\r\n\r\n20:03:11:01 National\r\norigin or ancestry.
\r\n\r\n\r\n\r\n20:03:11:01. National origin or ancestry. Covert\r\npractices of discrimination on the basis of national origin include the\r\nfollowing:
\r\n\r\n\r\n(1) The use of tests in the\r\nEnglish language or requirements that employees and applicants read, write, or\r\nspeak English when English is not the person's first language or mother tongue\r\nand when English language skill is not a requirement of the work to be\r\nperformed;
\r\n\r\n\r\n(2) Denial of equal\r\nopportunity to persons married to or associated with persons of a specific\r\nnational origin or ancestry;
\r\n\r\n\r\n(3) Denial of equal\r\nopportunity because of membership in lawful organizations identified with or\r\nseeking to promote the interest of national groups;
\r\n\r\n\r\n(4) Denial of equal\r\nopportunity because of attendance at schools or churches commonly attended by\r\npersons of a given national origin or ancestry; and
\r\n\r\n\r\n(5) Denial of equal\r\nopportunity to persons who as a class of persons tend to fall outside national\r\nnorms for height and weight when such height and weight specifications are not\r\nnecessary for the performance of the work involved.
\r\n\r\n\r\nSource:\r\nSL 1975, ch 16, § 1; 12 SDR\r\n151, 12 SDR 155, effective July 1, 1986.
\r\n\r\nGeneral\r\nAuthority:SDCL 20-13-27.
\r\n\r\nLaw\r\nImplemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12.
\r\n\r\n\r\n