Administrative Rule 20:03 | South Dakota Legislature

20:03:01:01. 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:

(1) "Respondent," the person against whom a charge is made;

(2) "Charging party," the person filing a charge;

(3) "Investigating official," the person investigating the charge;

(4) "Duly authorized agent," any person specially designated by the commission or the director of human rights;

(5) "Act", the South Dakota Human Relations Act of 1972.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-1, 20-13-27.

Rule 20:03:01:02 Submission of information.

20:03:01:02. Submission of information. If information received by a commissioner or the division discloses that a person is entitled to file a charge, the commissioner or the division shall assist that person in filing. A member of the commission, a state's attorney, or the attorney general may file a charge verified according to the best of his/her knowledge, information, and belief. Those commissioners who are involved in initiating a charge under this section shall not participate in any further proceeding concerning that charge except as authorized by SDCL 1-26.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-29.

Rule 20:03:01:03 Nondisclosure.

20:03:01:03. Nondisclosure. Information and charges forwarded to the division of human rights by the United States equal employment opportunity commission shall not be disclosed under the following circumstances:

(1) Pursuant to Section 709(d) of Title VII of the Civil Rights Act of 1964 as amended, EEOC reports filed by employers, employment agencies, and labor organizations and furnished to the division by the equal employment opportunity commission shall not be made public by the division prior to the institution of a public hearing;

(2) Pursuant to section 709(e) of Title VII of the Civil Rights Act of 1964, any investigative information obtained by the EEOC and forwarded to the division shall not be made public prior to the filing of a suit under Title VII;

(3) Pursuant to Section 706(b)(c) of Title VII of the Civil Rights Act of 1964 and 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.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 4 SDR 31, effective December 4, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented: SL 1977, ch 184.

Rule 20:03:01:04 Issuance, amendment, or repeal of rules.

20:03:01:04.Issuance, amendment, or repeal of rules. Any interested person petitioning the commission for the issuance, amendment, or repeal of any rule or regulation shall file an original and nine legibly duplicated (not carbon) copies of the petition with the division in Pierre, South Dakota.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-27, 20-13-45, 20-13-46.

Commission Note: 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.

Rule 20:03:01:05 Declaratory rules.

20:03:01:05. Declaratory rules. Any interested person may petition the commission, in writing, for the issuance of a declaratory ruling as to the applicability of any statutory provision or any rule or order of the commission. An original and nine legibly duplicated (not carbon) copies of the petition shall be filed with the division in Pierre, South Dakota. The petition shall state the factual situation and the statute, rule, or order, to which the situation applies, together with a statement of the grounds in support of and in opposition to the petitioner's position.

Upon the filing of the petition, the commission shall consider and dispose of the petition within 30 days after its next meeting by issuing a ruling. If the commission determines after a review of the petition and any supporting argument or information that there exists any question of fact, the petition shall be referred to the division for processing as a charge. If the commission determines after such a review that there exists no genuine fact, it shall issue a ruling either granting or denying the petition in whole or in part or make other disposition of the petition. Prompt notice of any action taken shall be given to the petitioner.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 1-26-15, 20-13-27, 20-13-45, 20-13-46.

Rule 20:03:02 CHARGES

CHAPTER 20:03:02

CHARGES

Section

20:03:02:01 Charge by aggrieved person, by organization against employees or members, or by public official.

20:03:02:02 Withdrawal of charge.

20:03:02:03 Contents -- Amendment.

20:03:02:04 Charge forwarded by the United States equal employment opportunity commission.

Rule 20:03:02:01 Charge by aggrieved person, by organization against employees or members, or by public official.

20:03:02:01. Charge by aggrieved person, by organization against employees or members, or by public official. A charge shall be considered filed when received by the division of human rights, a commissioner, or by any duly authorized agent of the division.

The charge shall be in writing and signed and shall be verified. Forms for charges shall be made available to all persons from the division of human rights in Pierre, South Dakota, or from any member of the commission.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 17, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-29.

Rule 20:03:02:02 Withdrawal of charge.

20:03:02:02. Withdrawal of charge. A charge filed by an aggrieved person or by an organization may be withdrawn only upon written request of the charging party and only with the consent of the division or its duly authorized agent.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-29.

Rule 20:03:02:03 Contents -- Amendment.

20:03:02:03. Contents -- Amendment. Each charge shall contain the following:

(1) The full name, address, and telephone number of the person making the charge;

(2) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unfair or discriminatory practice.

Notwithstanding the provisions of subdivisions (1) and (2) of this section, a charge is sufficient when the division receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to swear to the charge; to clarify or amplify allegations made in the charge; to add, remove, or change a party; or if the purposes of the Act will be served by amendment, and such amendments shall relate back to the original filing date. All such amended charges shall be served immediately upon the respondent after receipt. However, an amendment alleging additional acts constituting unfair or discriminatory practices not directly related to or growing out of the subject matter of the original charge may be permitted only where at the date of the amendment the allegation could have been timely filed as a separate charge.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-29, 20-13-31.

Rule 20:03:02:04 Charge forwarded by the United States equal employment opportunity commission.

20:03:02:04. Charge forwarded by the United States equal employment opportunity commission. The division may accept charges of unlawful employment discrimination filed within 180 days of the alleged discriminatory act with the United States equal employment opportunity commission and transmitted by registered mail by the United States equal employment opportunity commission to the division, as long as such charges allege 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.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-8, 20-13-29, 20-13-31; 42 U.S.C. 2000e-5(c).

Rule 20:03:03 INVESTIGATION

CHAPTER 20:03:03

INVESTIGATION

Section

20:03:03:01 Investigation of charge.

20:03:03:02 Documentary evidence to be produced by respondent.

20:03:03:03 Charging party's responsibility during investigation.

Rule 20:03:03:01 Investigation of charge.

20:03:03:01. Investigation of charge. During the course of the investigation, the division may utilize the services of federal, state and local agencies which are charged with the administration of comparable human relations laws or ordinances. The division reserves all right to process charges under the Act.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-8, 20-13-32.

Rule 20:03:03:02 Documentary evidence to be produced by respondent.

20:03:03:02. Documentary evidence to be produced by respondent. Whenever possible the investigating official shall obtain documentary evidence and statements from parties and witnesses by voluntary compliance. If there is noncompliance with any such request or if, in the opinion of the investigating official, the situation warrants it, the director of the division or any commissioner may subpoena parties and witnesses to appear and give testimony and to produce any records, books, papers, and documents; may require written interrogatories of parties; and may utilize any other discovery procedure authorized by South Dakota laws governing discovery in a civil proceeding. If written interrogatories are requested, they shall be completed 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.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Cross-Reference: Civil procedure -- Discovery, SDCL 15-6-26 to 15-6-37, inclusive.

Rule 20:03:03:03 Charging party's responsibility during investigation.

20:03:03:03. Charging party's responsibility during investigation. The charging party shall keep the division advised in writing of the charging party's current address and telephone number while the charge is pending. If a charging party fails to comply with this requirement, the division may terminate any proceedings related to that charge by sending a letter of intent to terminate to the charging party's last known address by certified or registered mail 30 days prior to termination.

Source: 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-45.

Rule 20:03:04 FINDINGS

CHAPTER 20:03:04

FINDINGS

Section

20:03:04:01 Dismissal of charge.

20:03:04:01.01 Dismissal of charge filed with EEOC.

20:03:04:02 Finding of no probable cause.

20:03:04:03 Finding of probable cause, conference, and conciliation.

20:03:04:04 Failure of charging party or respondent to participate in conciliation.

20:03:04:05 Conciliation agreement.

20:03:04:06 Violation of conciliation agreement.

20:03:04:07 Termination of proceedings without the consent of charging party.

20:03:04:08 Conciliation agreement not approved by the division.

20:03:04:09 Settlement without finding.

Rule 20:03:04:01 Dismissal of charge.

20:03:04:01. Dismissal of charge. If the allegations of a charge on its face or as amplified by the statements of the charging party to the investigating official disclose that the charge is not timely filed or when the subject falls outside the jurisdiction of the Act or otherwise fails to state 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.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-29, 20-13-31, 20-13-32.

Rule 20:03:04:01.01 Dismissal of charge filed with EEOC.

20:03:04:01.01. Dismissal of charge filed with EEOC. If a charge filed with the commission is also filed with the Equal Employment Opportunity Commission (EEOC), the investigating official shall enter an order dismissing the charge without any further investigation after receiving notice from the EEOC that it has issued a right to sue to the charging party. Notice may be in the form of a copy of the EEOC right to sue or other forms of EEOC notice which are verified with the charging party. The order must state the reason for the dismissal and must be served on the charging party and the respondent.

Source: 24 SDR 31, effective September 15, 1997.

General Authority:SDCL 20-13-27(2).

Law Implemented:SDCL 20-13-45.

Rule 20:03:04:02 Finding of no probable cause.

20:03:04:02. Finding of no probable cause. If the investigating official, based upon the investigation, determines that there is not probable cause to support the allegations of a charge, the investigating official shall issue an order dismissing the charge, accompanied by a statement of the underlying facts supporting such a decision and serve both on the charging party and respondent. This finding shall be considered a final agency action for the purpose of appeal to the circuit court.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority: SDCL 20-13-27.

Law Implemented: SDCL 20-13-32, 20-13-43.

Rule 20:03:04:03 Finding of probable cause, conference, and conciliation.

20:03:04:03. Finding of probable cause, conference, and conciliation. Both the charging party and the respondent shall be notified in writing of the finding of probable cause and the respondent shall be invited to participate in a conciliation conference for the purpose of attempting to resolve the matter informally. The respondent shall be given reasonable notice of the time and place of the conciliation conference. If the investigating official conducting the conciliation conference determines that the charging party should be present, he or she shall also be given reasonable notice of the time and place of the conciliation conference. The conciliation session shall be devoted solely to the terms of the conciliation agreement.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:04:04 Failure of charging party or respondent to participate in conciliation.

20:03:04:04. Failure of charging party or respondent to participate in conciliation. If the charging party is directed to appear at the conciliation conference and fails or refuses to appear or participate for no good cause, the investigating official may dismiss the charge. If the respondent fails or refuses to appear or participate in the conciliation conference, the investigating official may take those steps authorized by SDCL 20-13-34 and 20-13-35.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:04:05 Conciliation agreement.

20:03:04:05. Conciliation agreement. In conciliating a case in which a determination of probable cause has been made, the investigating official shall attempt to achieve a just resolution and to obtain assurances that the respondent will eliminate the unfair or discriminatory practice and take appropriate affirmative action. Disposition of a case pursuant to this section shall be in writing. The written agreement shall be signed by the charging party, the respondent, and the investigating official. A notice of settlement, together with a copy of the written agreement, shall be sent to the parties. Proof of compliance with SDCL 20-13 must be obtained by the investigating official before the case is closed.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:04:06 Violation of conciliation agreement.

20:03:04:06. Violation of conciliation agreement. If the division determines that the respondent has violated or is violating the terms of settlement and adjustment, the division may seek enforcement according to the terms of the agreement.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:04:07 Termination of proceedings without the consent of charging party.

20:03:04:07. Termination of proceedings without the consent of charging party. The investigating official may, without the consent of the charging party, close the case, if, in the official's opinion, a written agreement signed by the respondent and the investigating official provides for the elimination of the unfair or discriminatory practice, the elimination of the effects of the unfair or discriminatory practice with respect to the charging party, and appropriate affirmative action effectuating the purpose of the Act.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:04:08 Conciliation agreement not approved by the division.

20:03:04:08. Conciliation agreement not approved by the division. If the terms of settlement and adjustment agreed to by the parties are not approved by the investigating official, the investigating official need not sign the written agreement and may close the case as having been settled on terms not approved by the investigating official. If this occurs, the division need not take any action if there is a violation of the terms of settlement and adjustment.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:04:09 Settlement without finding.

20:03:04:09. Settlement without finding. As an alternative to performing a full investigation, the investigating official may attempt to resolve a charge without establishing fault. The resolution must be agreed to by all parties.

Source: 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:05 ANSWERS AND HEARINGS

CHAPTER 20:03:05

ANSWERS AND HEARINGS

Section

20:03:05:01 Scheduling charge for hearing.

20:03:05:01.01 Parties' right to discovery.

20:03:05:01.02 Investigating official's report.

20:03:05:02 Contents of answer -- Construed effect of omissions.

20:03:05:02.01 Further pleadings by the parties and admissions.

20:03:05:03 Service of answer.

20:03:05:04 Notice to answer charge at hearing.

20:03:05:05 Amendment of charge or answer after hearing scheduled.

20:03:05:06 Consolidated hearing.

20:03:05:07 Conduct of hearings.

20:03:05:08 Settlement prior to recommended order and decision.

20:03:05:09 Representation at hearings.

Rule 20:03:05:01 Scheduling charge for hearing.

20:03:05:01. Scheduling charge for hearing. The investigating official shall report to the commission when further effort to settle a charge is futile, and the official shall give the commissioners copies of the original and any amended charges and the respondent's written answer submitted 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.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 31, effective September 15, 1997.

General Authority:SDCL 20-13-27(2)

Law Implemented:SDCL 20-13-35, 20-13-45.

Rule 20:03:05:01.01 Parties' right to discovery.

20:03:05:01.01. Parties' right to discovery. At any time after notice to answer the parties may use the discovery proceedings available under 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.

Source: 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 31, effective September 15, 1997.

General Authority:SDCL 20-13-27(2).

Law Implemented:SDCL 20-13-35, 20-13-36, 20-13-45.

Rule 20:03:05:01.02 Investigating official's report.

20:03:05:01.02. Investigating official's report. The investigating official's report shall include the name of the parties; the type of unfair or discriminatory practice alleged (e.g., employment discrimination on the basis of race, public accommodation discrimination on the basis of disability); the fact that the investigating official made a probable cause determination; and a statement that further effort to settle the charge is futile.

Source: 24 SDR 31, effective September 15, 1997.

General Authority:SDCL 20-13-27(2).

Law Implemented:SDCL 20-13-35, 20-13-45.

Rule 20:03:05:02 Contents of answer -- Construed effect of omissions.

20:03:05:02. Contents of answer -- Construed effect of omissions. The original answer shall be in writing, with the original signed under oath or affirmation by the respondent or the respondent's attorney, and shall contain the following:

(1) The correct name and post office address of the respondent;

(2) The correct name, post office address, and telephone number of the respondent's attorney, if respondent is represented by an attorney; and

(3) One of the following:

(a) A specific denial or admission of each allegation of the charge;

(b) A denial of any knowledge or information sufficient to form a belief; or

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 5 SDR 27, effective October 17, 1978; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-35.

Rule 20:03:05:02.01 Further pleadings by the parties and admissions.

20:03:05:02.01. Further pleadings by the parties and admissions. Further pleadings by the parties shall not be made unless the commission chair or the hearing examiner orders them for purposes of clarification of the issues. No admissions may be construed from lack of response. Any allegation in the charge which is not denied or admitted in the answer, unless the respondent states in the answer that he or she is without knowledge or information sufficient to form a belief, shall be deemed admitted.

Source: 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-34, 20-13-45.

Rule 20:03:05:03 Service of answer.

20:03:05:03. Service of answer. One copy of the answer shall be served on all parties, the members of the commission, and the division by personal delivery or by certified or registered mail. An affidavit of mailing or service, copies of the receipts for delivery by certified or registered mail, an admission of service, or other competent evidence shall suffice as proof of service which shall be supplied to the investigating official at the time of the filing or within 10 days after the filing of the answer.

Source: SL 1975, ch 16, § 1; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-34.

Rule 20:03:05:04 Notice to answer charge at hearing.

20:03:05:04. Notice to answer charge at hearing. If the matter is scheduled for hearing under § 20:03:05:01, all parties shall be given prompt notice of the hearing. In addition to notice requirements provided by SDCL 1-26, the notice shall also contain the following:

(1) The name of the hearing examiner who will conduct such hearing if one has been designated;

(2) A statement advising both the charging party and the respondent of each party's right to be present and to be represented at the hearing in person, by an attorney, or both; and

(3) A statement advising the respondent of his or her right to file an answer to the charge in accordance with § 20:03:05:01 unless the answer was filed prior to the notice.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 1-26-17, 20-13-35.

Rule 20:03:05:05 Amendment of charge or answer after hearing scheduled.

20:03:05:05. Amendment of charge or answer after hearing scheduled. At any time before the close of the hearing, the charging party may, by written request to the commission or to the hearing examiner, ask permission to amend the charge. The request shall specify the particular amendments to the charge requested by the charging party and shall be served at the same time on all parties to the proceedings. Requests to amend shall be granted unless substantial harm to the respondent can be shown.

At any time before the close of the hearing, the respondent may amend the answer to the original or amended charge. Copies of the respondent's request to amend and the particular amendments requested shall be served at the same time on all parties to the proceedings. Such requests shall be granted unless substantial harm to the charging party can be shown.

Amended charges and amended answers shall conform to the requirements for charges and answers set forth in this chapter.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-40.

Rule 20:03:05:06 Consolidated hearing.

20:03:05:06. Consolidated hearing. Two or more proceedings against the same respondent arising out of the same set of circumstances or two or more proceedings by the same charging party against two or more respondents arising out of the same set of circumstances may be consolidated by the commission or the hearing examiner, in their discretion, for the purposes of hearing.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-40.

Rule 20:03:05:07 Conduct of hearings.

20:03:05:07. Conduct of hearings. The hearing shall be conducted by the commission or a hearing examiner designated by the commission.

All testimony taken at the hearing shall be under oath or affirmation.

The commission or the hearing examiner shall arrange for electronic recording or stenographic reporting, or both, of the proceedings of all hearings to be made by a commission agent. If ordered by the commission or the hearing examiner, the record of the hearing shall be transcribed.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 1-26-26, 20-13-36, 20-13-37, 20-13-38, 20-13-39, 20-13-41.

Rule 20:03:05:08 Settlement prior to recommended order and decision.

20:03:05:08. Settlement prior to recommended order and decision. If, after issuance and service of a written notice of hearing but before the close of the hearing, the charging party and the respondent jointly notify the commission or the hearing examiner in writing that they have agreed to terms of settlement and adjustment, all of which are set forth in detail in the joint notification, the commission or the hearing examiner may order the scheduled hearing date postponed or the hearing recessed if it is already in progress.

If the terms of settlement and adjustment agreed to by the parties are approved by the commission or the hearing examiner, the commission or the hearing examiner shall have the terms of settlement and adjustment prepared in writing and signed by the parties and by the commission or the hearing examiner. The written agreement has the same status and effect as the executed written terms of settlement and adjustment under §§ 20:03:04:05 and 20:03:04:06.

If the terms of settlement and adjustment agreed to by the parties are not approved by the commission, it need not sign the written agreement and may close the case as having been settled on terms not approved by them. If this occurs, the commission need not seek enforcement if there is a violation of the terms of settlement and adjustment.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-32.

Rule 20:03:05:09 Representation at hearings.

20:03:05:09. Representation at hearings. At hearings held before the commission, a commissioner, or a hearing examiner, representation shall be by individuals on their own behalf, by attorneys or other agents of the division, or by attorneys licensed to practice law in South Dakota. Out-of-state attorneys appearing at a human rights hearing shall be introduced by an attorney licensed to practice law in South Dakota who must be present at all phases of the proceedings before the commission.

Source: 5 SDR 27, effective October 17, 1978; 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 20-13-32.

Rule 20:03:06 ORDERS

CHAPTER 20:03:06

ORDERS

Section

20:03:06:01 Order and decision when commission conducts the hearing.

20:03:06:02 Order and decision when hearing examiner conducts the hearing.

20:03:06:03 Repealed.

Rule 20:03:06:01 Order and decision when commission conducts the hearing.

20:03:06:01. Order and decision when commission conducts the hearing. In hearings before the commission, after the taking of testimony, the hearing of oral argument, and the consideration of all the evidence, the commission may request each party to submit written proposed findings of fact, conclusions of law, and order.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 20-13-35, 20-13-42, 20-13-43, 20-13-44.

Rule 20:03:06:02 Order and decision when hearing examiner conducts the hearing.

20:03:06:02. Order and decision when hearing examiner conducts the hearing. In hearings conducted by a hearing examiner, after the taking of testimony, the hearing of oral argument, and the consideration of all the evidence, the hearing examiner may request each party to submit written proposed findings of fact, conclusions of law, and order.

Source: SL 1975, ch 16, § 1; 2 SDR 31, effective November 3, 1975; 3 SDR 49, effective January 18, 1977; 12 SDR 151, 12 SDR 155, effective July 1, 1986.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 1-26-18.1, 20-13-35, 20-13-42, 20-13-43.

Rule 20:03:06:03 Repealed.

20:03:06:03. Review of recommended order and decision.Repealed.

Source: SL 1975, ch 16, § 1; 2 SDR 31, repealed November 3, 1975.

Rule 20:03:07 GENERAL COMMISSION POLICIES

CHAPTER 20:03:07

GENERAL COMMISSION POLICIES

Section

20:03:07:01 Purpose of regulations.

20:03:07:02 Protected class defined.

20:03:07:03 Purpose of the act.

20:03:07:04 Recruitment.

20:03:07:05 Discharges.

Rule 20:03:07:01 Purpose of regulations.

20:03:07:01. Purpose of regulations. Chapters 20:03:07 to 20:03:11, inclusive, are interpretations by the commission of the South Dakota Human 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.

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), 20-13-7, 20-13-28.

Rule 20:03:07:02 Protected class defined.

20:03:07:02. Protected class defined. The term "protected class" as used in chapters 20:03:07 to 20:03:11, inclusive, means a class of persons of the same race, color, creed, religion, sex, national origin, disability, or ancestry.

Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 24 SDR 31, effective September 15, 1997.

General Authority:SDCL 20-13-27.

Law Implemented:SDCL 1-26-1(7), 20-13-1(16), 20-13-10, 20-13-11, 20-13-12, 20-13-13.

Rule 20:03:07:03 Purpose of the act.

20:03:07:03. 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.

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, 20-13-13.

Rule 20:03:07:04 Recruitment.

20:03:07:04. Recruitment. Every employer must conduct recruitment and hiring practices to assure that all potential applicants are given fair notice of job vacancies, opportunity to apply for vacancies, and consideration for employment in all vacancies on bases which do not discriminate on grounds prohibited by law. Hiring and job assignment practices must assure that the effect of past exclusion of a protected class is not carried forward into the future.

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, 20-13-12.

Rule 20:03:07:05 Discharges.

20:03:07:05. Discharges. It is sufficient to find discrimination in a discharge case if race, sex, or another proscribed category played any causal part in the discharge of the employee. It is not necessary that race, sex, or another proscribed category be the sole cause of the discharge.

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, 20-13-12.

Rule 20:03:08 TESTS

CHAPTER 20:03:08

TESTS

Section

20:03:08:01 Test defined.

20:03:08:01.01 Validity defined.

20:03:08:02 Discrimination through use of tests defined.

20:03:08:03 Continued use of unvalidated tests.

20:03:08:04 Employment agencies and employment services.

20:03:08:05 Disparate treatment.

20:03:08:06 Retesting.

Rule 20:03:08:01 Test defined.

20:03:08:01. Test defined. As used in §§ 20:03:08:01 to 20:03:08:06, inclusive, the term "test" means any paper-and-pencil or performance measure used as a basis for an employment decision. The rules in chapter 20:03:08 apply to, but are not limited to, ability tests which are designed to measure eligibility for hire, transfer, promotion, membership, training, referral, or retention. The term includes, but is not restricted to, measures of general intelligence, mental ability, and learning ability; specific intellectual abilities; mechanical, clerical, and other aptitudes; dexterity and coordination, knowledge, and proficiency; occupational and other interests; and attitudes, personality, or temperament. The term includes all formal, scored, quantified or standardized techniques of assessing job suitability including, in addition to the above, specific qualifying or disqualifying personal history or background requirements, specific educational or work history requirements, scored interviews, biographical information blanks, interviewers' rating scales, and scored application forms.

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 1-27-1(7), 20-13-1(14), 20-13-10, 20-13-11, 20-13-12, 20-13-15.

Rule 20:03:08:01.01 Validity defined.

20:03:08:01.01. Validity defined. As used in §§ 20:03:08:02 to 20:03:08:06, inclusive, the term "validity" means the established statistical relationship between a test instrument or other selection procedure and performance on the job.

Source: 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 to 20-13-12, 20-13-15.

Rule 20:03:08:02 Discrimination through use of tests defined.

20:03:08:02. Discrimination through use of tests defined. The use of a test which adversely affects hiring, promotion, transfer, or any other employment or membership opportunity of classes protected by the act constitutes discrimination unless the test has been validated and conforms to the guidelines on employee selection procedures issued by the U.S. equal employment opportunity commission, 29 C.F.R. 1607 (September 25, 1978), and the person giving a particular test or acting upon the results of that test can demonstrate that alternative suitable hiring, transfer, or promotion procedures are unavailable for his use.

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, 20-13-15.

Rule 20:03:08:03 Continued use of unvalidated tests.

20:03:08:03. Continued use of unvalidated tests. If determination of validity in a specific setting is practicable and required but not yet obtained, the use of the test may continue provided the person can establish validity as described in the guidelines on employee selection procedures issued by the U.S. equal employment opportunity commission, 29 C.F.R. 1607 (September 25, 1978), and he has in progress validation procedures which are designed to produce the additional data required.

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 20-13-10, 20-13-12, 20-13-15.

Rule 20:03:08:04 Employment agencies and employment services.

20:03:08:04. Employment agencies and employment services. Employment agencies and employment services, both private and state shall do the following:

(1) Not make applicant or employee appraisals or referrals based on the results obtained from a psychological test or other selection standard not validated in accordance with this chapter;

(2) When requested by an employer or union to devise a testing program, follow the standards for test validation as set forth in this chapter. An employment service is not relieved of its obligation because the test user did not request validation or has requested the use of some lesser standard than is provided in this chapter; and

(3) If requested to administer a testing program which has been devised elsewhere, request evidence of validation, as described in this chapter, before it administers the testing program or makes referral pursuant to the test results, or both. The employment agency or service must furnish to the commission, on request, evidence of validation. An employment agency or service shall refuse to administer a test where the employer or union does not supply satisfactory evidence of validation. Reliance by the test user on the reputation of the test, its author, or the name of the test is not sufficient evidence of validity. An employment agency or service may administer a testing program where the evidence of validity comports with the standards provided in § 20:03:08:03.

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, 20-13-15.

Rule 20:03:08:05 Disparate treatment.

20:03:08:05. Disparate treatment. A test or other employee selection standard, even though validated against job performance in accordance with this chapter, may not be imposed upon any individual or class protected 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.

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, 20-13-15.

Rule 20:03:08:06 Retesting.

20:03:08:06. Retesting. Employers, unions, and employment agencies must provide an opportunity for retesting and reconsideration to candidates who failed earlier who have availed themselves of more training or experience.

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, 20-13-12, 20-13-15.

Rule 20:03:09 DISCRIMINATION BECAUSE OF SEX

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.

Rule 20:03:09:01 Construction of terms "employer" and "employers."

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.

Rule 20:03:09:02 Sex as a bona fide occupational qualification.

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.

Rule 20:03:09:03 Effect of sex-orientated federal employment legislation.

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.

Rule 20:03:09:04 Separate lines of progression and seniority systems.

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.

Rule 20:03:09:05 Distinction between light and heavy jobs.

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.

Rule 20:03:09:06 Discrimination against married persons.

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.

Rule 20:03:09:07 Job opportunities advertising.

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.

Rule 20:03:09:08 Employment agencies dealing with only one sex.

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.

Rule 20:03:09:09 Employment agencies' responsibilities in filling job orders.

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.

Rule 20:03:09:10 Preemployment inquiries about sex.

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.

Rule 20:03:09:11 Fringe benefits.

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.

Law Implemented:SDCL 20-13-10, 20-13-12.

Rule 20:03:09:12 Employment policies relating to pregnancy and childbirth.

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).

Rule 20:03:10 DISCRIMINATION BECAUSE OF RELIGION OR CREED

CHAPTER 20:03:10

DISCRIMINATION BECAUSE OF RELIGION OR CREED

Section

20:03:10:01 Accommodation to employees' religious needs.

20:03:10:02 Burden of proof.

Rule 20:03:10:01 Accommodation to employees' religious needs.

20:03:10:01. Accommodation to employees' religious needs. An employer must make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business.

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.

Rule 20:03:10:02 Burden of proof.

20:03:10:02. Burden of proof. The employer has the burden of proving that an undue hardship makes the required accommodations to the religious needs of the employee unreasonable.

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.

Rule 20:03:11 DISCRIMINATION BECAUSE OF ORIGIN OR ANCESTRY

CHAPTER 20:03:11

DISCRIMINATION BECAUSE OF ORIGIN OR ANCESTRY

Section

20:03:11:01 National origin or ancestry.

Rule 20:03:11:01 National origin or ancestry.

20:03:11:01. National origin or ancestry. Covert practices of discrimination on the basis of national origin include the following:

(1) The use of tests in the English language or requirements that employees and applicants read, write, or speak English when English is not the person's first language or mother tongue and when English language skill is not a requirement of the work to be performed;

(2) Denial of equal opportunity to persons married to or associated with persons of a specific national origin or ancestry;

(3) Denial of equal opportunity because of membership in lawful organizations identified with or seeking to promote the interest of national groups;

(4) Denial of equal opportunity because of attendance at schools or churches commonly attended by persons of a given national origin or ancestry; and

(5) Denial of equal opportunity to persons who as a class of persons tend to fall outside national norms for height and weight when such height and weight specifications are not necessary for the performance of the work involved.

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.

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