CHAPTER 20:03:09
DISCRIMINATION BECAUSE OF SEX
Section
20:03:09:01 Construction of terms "employer" and "employers."
20:03:09:02 Sex as a bona fide occupational qualification.
20:03:09:03 Effect of sex-orientated federal employment legislation.
20:03:09:04 Separate lines of progression and seniority systems.
20:03:09:05 Distinction between light and heavy jobs.
20:03:09:06 Discrimination against married persons.
20:03:09:07 Job opportunities advertising.
20:03:09:08 Employment agencies dealing with only one sex.
20:03:09:09 Employment agencies' responsibilities in filling job orders.
20:03:09:10 Preemployment inquiries about sex.
20:03:09:11 Fringe benefits.
20:03:09:12 Employment policies relating to pregnancy and childbirth.
20:03:09:01. Construction of terms "employer" and "employers." The terms "employer" or "employers" in this chapter include labor organizations, employment agencies, and other persons insofar as their action or inaction adversely affects employment opportunities.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 1-26-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12, 20-13-26.
20:03:09:02. Sex as a bona fide occupational qualification. Bona fide occupational qualification exceptions shall be interpreted narrowly.
The refusal to hire an individual based on stereotyped characteristics of the sexes or because of the preferences of coworkers, the employer, or clients or customers are not bona fide occupational qualification exceptions. Sex is considered to be a bona fide occupational qualification if it is necessary for the purpose of authenticity or genuineness.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-1(14), 20-13-10.
20:03:09:03. Effect of sex-orientated federal employment legislation. Where the federal occupational, safety and health act requires that separate restrooms be provided for employees of each sex, an employer is considered to have engaged in unlawful employment practice if he or she refuses to hire or otherwise adversely affects the employment opportunities of applicants or employees in order to avoid the provision of that act.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10.
20:03:09:04. Separate lines of progression and seniority systems. Employers may not classify a job as a male or female job or maintain separate lines of progression or separate seniority lists based on sex if this adversely affects any employee unless sex is a bona fide occupational qualification for that job.
Employers may not arbitrarily classify jobs so that a female is prohibited from applying for a job labeled "male" or for a job in a male line of progression and vice versa or so that a male scheduled for layoff is prohibited from displacing a less senior female on a female seniority list and vice versa.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10, 20-13-12, 20-13-16, 20-13-17.
20:03:09:05. Distinction between light and heavy jobs. A seniority system or line of progression which distinguishes between light and heavy jobs constitutes an unlawful employment practice if it operates a disguised form of classification by sex or creates unreasonable obstacles to the advancement by members of either sex into jobs which members of that sex could reasonably be expected to perform.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10, 20-13-12, 20-13-16, 20-13-17.
20:03:09:06. Discrimination against married persons.An employer's rule which forbids or restricts the employment of married women and which is not applicable to married men or vice versa is discrimination based on sex prohibited by SDCL 20-13.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10.
20:03:09:07. Job opportunities advertising. Help wanted advertisements may not indicate a preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job involved. The placement of an advertisement in columns classified by publishers on the basis of sex, such as columns headed male or female, is an expression of a preference, limitation, specification, or discrimination based on sex. The classification of columns by publishers on the basis of sex is a violation of SDCL 20-13.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10, 20-13-11, 20-13-13, 20-13-26.
20:03:09:08. Employment agencies dealing with only one sex. Private employment agencies which deal exclusively with one sex are engaged in an unlawful employment practice except to the extent that such agencies limit their services to furnishing employees for particular jobs for which sex is a bona fide occupational qualification.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-11.
20:03:09:09. Employment agencies' responsibilities in filling job orders.An employment agency that receives a job order containing an unlawful sex specification shares responsibility with the employer placing the job order if the agency fills the order knowing that the sex specification is not based upon a bona fide occupational qualification. However, an employment agency is not considered to be in violation of the law if the agency maintains a written record of the job order and makes it available to the commission. The record shall include the name of the employer, the description of the job, and the basis for the employer's claim of bona fide occupational qualification.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-11.
20:03:09:10. Preemployment inquiries about sex. A preemployment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination concerning sex is unlawful unless it is based upon a bona fide occupational qualification.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-10.
20:03:09:11. Fringe benefits. The term "fringe benefits," as used in this section includes medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions, and privileges of employment. No employer may do the following:
(1) Discriminate between men and women with regard to fringe benefits. An employer may not condition benefits available to employees and their spouses and families based on the status of the employee as head of the household or principal wage earner in the family unit;
(2) Make available benefits for the wives and families of male employees if the same benefits are not made available for the husbands and families of female employees, make available benefits for the wives of male employees which are not made available for female employees, or make available benefits for the husbands of female employees which are not made available for male employees;
(3) Have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex or which differentiates in benefits on the basis of sex.
It 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.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
20:03:09:12. Employment policies relating to pregnancy and childbirth. Written or unwritten employment policies and practices, except for insurance, shall be applied to pregnancy and childbirth on the same terms and conditions as they are applied to other temporary disabilities. No employer shall provide for child care leave which discriminates on the basis of sex.
Source: SL 1975, ch 16, § 1; 6 SDR 59, effective December 16, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority:SDCL 20-13-27.
Law Implemented:SDCL 20-13-1(14), 20-13-10, 20-13-12.
Court Decisions: A rule which prohibited the exclusion of group health insurance benefits for pregnancy and pregnancy-related disabilities to unmarried persons exceeded the statutory authority of the human rights commission to adopt rules, and an employer who provides such an insurance policy is not guilty of sex discrimination 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).
A rule which prohibited the exclusion of benefits for pregnancy and pregnancy-related disabilities in a "single plan" group health insurance policy (as opposed to a "family plan" policy) exceeded the statutory authority of the human rights commission to adopt rules, and an employer who provides such an insurance policy 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).
