Interviewing and Selecting Job Candidates: South Dakota
Federal law and guidance on this subject should be reviewed together with this section.
Author: Gloria Ju
- The South Dakota Human Relations Act (SDHRA) prohibits discrimination in the hiring process based on several protected characteristics and applies to all employers regardless of size. See South Dakota Human Relations Act.
- The SDHRA includes limited exceptions for bona fide religious institutions and a few other employers and organizations. See South Dakota Human Relations Act.
- South Dakota has a preemployment inquiry guide that includes many examples of acceptable and unacceptable interview questions. See Preemployment Inquiries.
- Employers cannot refuse to hire applicants based on a preexisting injury if the applicant can perform the essential job duties. See Workers' Compensation.
- Making hiring decisions in a way that that encourages or discourages union membership violates South Dakota's collective bargaining statutes. See Labor Law.
- The South Dakota Supreme Court has addressed the issue of conducting background checks to avoid negligent hiring liability. See Negligent Hiring.
- Employers that provide written references in good faith about a current or former employee's job performance are protected from liability under South Dakota's reference immunity law. See Reference Checks.
South Dakota Human Relations Act
Unlike federal antidiscrimination laws, such as Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), the South Dakota Human Relations Act (SDHRA) does not include a minimum employee threshold for employer coverage. The SDHRA applies to all employers, employment agencies and labor organizations. § 20-13-1. However, the SDHRA makes exceptions for:
- Bona fide religious institutions, with respect to any qualifications for employment based on religion when such qualifications are related to a bona fide religious purpose, § 20-13-18;
- Voluntary youth services organizations, veterans' organizations, fraternities, sororities and father-son/mother-daughter activities, with respect to gender segregation or preference; and
- The federal government, Native American tribes or any tribally owned enterprise.
The South Dakota Human Relations Act (SDHRA) prohibits discrimination in employment based on:
- Sex (including pregnancy);
- Disability; and
- National origin.
The SDHRA does not cover age. However, job applicants and employees may be able to file suit under the federal Age Discrimination in Employment Act (ADEA) if the employer has 20 or more employees.
Engaging in any of the following actions due to an individual's protected characteristic violates the SDHRA:
- Failure or refusal to hire;
- Termination of employment; and
- Adverse or unequal treatment with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff or any term or condition of employment.
It is an unfair or discriminatory practice for any employer, employment agency, labor organization or their employees, agents or members, directly or indirectly, to advertise or in any other manner indicate or publicize that individuals of any particular race, color, creed, religion, sex, ancestry, disability or national origin are unwelcome, objectionable, not acceptable or not solicited for employment or membership. § 20-13-13.
Help wanted advertisements may not indicate a preference, limitation, specification or discrimination based on sex unless sex is a bona fide occupational qualification (BFOQ) for the particular job involved. The placement of an advertisement in columns classified 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. Admin. Rule 20:03:09:07.
A preemployment inquiry in connection with prospective employment that directly or indirectly expresses any limitation, specification or discrimination concerning sex is unlawful unless it is based upon a bona fide occupational qualification (BFOQ). Admin. Rule 20:03:09:10. The BFOQ exception is meant to apply only in limited circumstances, and the burden is on the employer to justify it.
A Preemployment Inquiry Guide can be found on the South Dakota Department of Labor and Regulation website. This guide provides examples of acceptable and unacceptable hiring interview questions and a sample job application form. Some questions that will be viewed with suspicion according to the Guide include:
- What is your date of birth?
- Do you have pre-school age children?
- Does your spouse object to your working?
- Do you plan to have a family?
- Asking for a prospective employee's arrest, court or conviction record if not substantially related to the functions of employment; and
- Requesting a photograph of the applicant before hiring.
South Dakota is an employment at-will state, meaning an employer can end the employment relationship at any time for any reason so long as it is not a discriminatory one. § 60-4-4.
However, statements made by an employer during the interview and selection process could alter the at-will relationship. For instance, any specific representation or statement about job security to a prospective employee could give that individual a claim that a contract exists.
An employer can fail or refuse to hire and employ any individual for any position if:
- The occupancy of such position, or access to the premises in or upon which any part of the job duties is to be performed, is subject to any national security requirement imposed in the interest of the United States under any security program in effect under any US statute or executive order of the President; and
- Such individual has not fulfilled or has ceased to fulfill that requirement.
As part of the selection process, employers may give and act upon the results of any professionally developed ability test so long as the test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, creed, religion, sex, ancestry, disability or national origin. § 20-13-15.
Bona Fide Occupational Qualifications
Employers may not ask questions on an application form or during a job interview relating to any protected characteristic under the South Dakota Human Relations Act unless the inquiries relate to a legitimate job qualification.
For instance, an employer may not discriminate against any person or employee due to the individual's blindness or partial blindness unless specific vision requirements constitute demonstrated and bona fide occupational qualifications (BFOQs) needed for effective work performance and the individual's blindness or partial blindness is related to his or her ability to perform the duties of a particular job or position. A violation of this section is punishable by a civil penalty of up to $1,000. § 20-13-10.1.
The refusal to hire an individual based on stereotyped characteristics of the sexes or because of the preferences of co-workers, the employer, or clients or customers are not BFOQ exceptions. Sex is considered to be a BFOQ if it is necessary for the purpose of authenticity or genuineness. Admin. Rule 20:03:09:02.
The BFOQ exception is meant to apply only in limited circumstances, and the burden is on the employer to justify its use.
Genetic information is information about genes, gene products and inherited characteristics that may derive from the individual or a family member. This includes information regarding carrier status and information derived from:
- Laboratory tests that identify mutations in specific genes or chromosomes;
- Physical examinations;
- Family histories; and
- Direct analysis of genes or chromosomes.
Employers are prohibited from seeking to obtain, obtaining or using genetic information of an employee or a prospective employee to:
- Distinguish between or discriminate against employees or prospective employees; or
- Restrict any right or benefit otherwise due or available to an employee or a prospective employee.
Employers are allowed to seek to obtain, to obtain or to use genetic information if:
- The employer is a law enforcement agency conducting a criminal investigation; or
- The employer relies on the test results from genetic information obtained by law enforcement through a criminal investigation, the employer legally acquires the test results, and the employer keeps the test results confidential except as otherwise required by law..
Under South Dakota's Workers' Compensation Act, employers are prohibited from discriminating in hiring against any prospective employee due to a preexisting injury if the injury does not affect the individual's ability to perform the work for which he or she is being hired. § 62-1-17.
It is an unfair labor practice for an employer to:
- Discriminate in regard to hiring, employment or any term or condition of employment to encourage or discourage membership in any collective bargaining unit; and
- Terminate or otherwise discriminate against an employee because he or she has filed a complaint, affidavit, petition or given any information or testimony under the collective bargaining statutes.
In 1995, the state passed legislation making English the "common" language. The common language is designated as the language of any official public document or record and any official public meeting. § 1-27-20.
Nonetheless, it may be considered national origin discrimination if an employer uses an English test as part of the selection process, or mandates that job applicants read, write or speak English when English is not the person's mother tongue if English language skill is not truly a job requirement. S.D. Admin. Rules 20:03:11:01.
In Kirlin v. Halverson, +758 N.W.2d 436 (S.D. 2008), the South Dakota Supreme Court observed "that courts addressing the amount of inquiry required into an applicant's history have concluded that when an employee's contact with the public is minimal there is no duty to perform a background check.... Conversely, where job requirements bring an employee into frequent contact with the public, or individuals who have special relationships with the employer, the inquiry required expands beyond the job application and personal interview to an investigation of the applicant/employee's background."
South Dakota has a reference immunity law that allows any employer or agent of the employer to disclose, in writing, information about the job performance of an employee or former employee to a prospective employer at the written request of the prospective employer or the employee or former employee.
The reference-giving employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, may not be held liable for the disclosure or its consequences. A lack of good faith can be shown if the employer:
- Recklessly, knowingly or with a malicious purpose disclosed false or deliberately misleading information; or
- Disclosed information subject to a nondisclosure agreement or information that is confidential under any federal or state law.
Any written response to the written request must be made available to the employee or the former employee upon written request.
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