Filing a Workplace Harassment Complaint in South Dakota

Through a twenty day window that either side can use. SDCL 20-13-35.1 provides that no later than twenty days after the issuance of notice requiring the respondent to answer the charge, the charging party or the respondent may elect to have the claims asserted in the charge decided in a civil action, in lieu of a hearing. Your employer can make that election as easily as you can, so the choice of forum is not yours alone. The statute requires the SDCL 20-13-35 notice to include a statement informing the parties of the right to transfer the matter to circuit court, and requires the agency to notify the parties of the election and of the one year limitation period, but calendar the notice date yourself.

One year, running from the election rather than from the harassment. SDCL 20-13-35.1 provides that any civil action shall be filed within one year of the election, and that the limitation period in which to file a civil action begins on the date of the notice of election. The election is also permanent: upon receipt of notice of election, the Division of Human Rights or the Commission of Human Rights has no further jurisdiction over the parties concerning the charge filed. There is no route back to the administrative process once that notice goes in.

You are routed to an administrative appeal rather than to a trial. SDCL 20-13-28.1 provides that if the Division of Human Rights determines there is no probable cause, the division shall issue an order dismissing the charge, and that this is considered final agency action for purposes of appeal under chapter 1-26. That is review of what the agency decided on the record it built, not a new lawsuit, and because the Commission never issues the SDCL 20-13-35 notice in that situation, the election route to circuit court never opens. The deadline and procedure for that appeal sit in chapter 1-26, which is outside this guide, so take a dismissal order straight to a South Dakota employment lawyer.

South Dakota has one of the broadest employer definitions anywhere. SDCL 20-13-1(7) defines employer as any person within the State of South Dakota who hires or employs any employee, and any person wherever situated who hires or employs any employee whose services are to be partially or wholly performed in the state. There is no headcount threshold at all, no calendar week counting test, and no exclusion for domestic service, so a household with a single employee is within the definition on its face. Federal Title VII needs fifteen employees. The second limb also reaches a national employer with a single South Dakota remote worker.

Yes, by name. SDCL 20-13-10 makes it an unfair or discriminatory practice to accord adverse or unequal treatment to any person, employee, or intern with respect to any term or condition of employment, and SDCL 20-13-1(10) defines intern as a student or trainee who works, sometimes without pay, at an organization, industry, trade, or occupation in order to gain work experience or earn academic credit. That closes the gap that usually defeats an unpaid intern's claim, which is the argument that no compensation means no employee. Note the drafting is specific to the employer provision and the word intern was not added to the parallel sections on employment agencies and labor organizations.

Not under chapter 20-13. SDCL 20-13-10 lists race, color, creed, religion, sex, ancestry, disability, and national origin, and age, sexual orientation and gender identity do not appear as protected bases anywhere in that chapter or in the Division's rules. For sexual orientation and gender identity, protection reaches South Dakota workers through federal law and the federal reading of sex discrimination, which means the EEOC route. Age needs particular care, because the federal extension to 300 days for an age charge depends on there being a state law prohibiting age discrimination and an agency enforcing it. Treat an age claim as needing prompt federal action and confirm the deadline with the EEOC or a lawyer rather than assuming 300 days.