South Dakota’s Human Relations Act  makes it illegal for an employer to discriminate on the basis of race, color, creed, religion, sex, ancestry or national origin.

A discrimination claim can be filed either with the state administrative agency, the South Dakota Division of Human Rights (SDDHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

To file a claim with the SDDHR, visit the SDDHR website. 

To file a claim with the EEOC, visit the EEOC Filing a Charge page.

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.   The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

Do not delay in contacting the SDDHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the SDDHR (or cross-file with the EEOC) within 180 days of the last instance of discrimination against you. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against.  South Dakota does not have an age discrimination statute, so the filing deadlines are the same as any other discrimination claim in South Dakota.  However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

• Ask both you and the employer to take part in a mediation program
• Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
• Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.” `                         

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the SDDHR or EEOC, you may need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Exhaustion is not required to proceed with your state discrimination claim, although going to the SDDHR may help you get more information about your case and your employer’s position.

Because South Dakota law does not limit or cap the punitive damages (damages intended to punish the employer), damages that are capped under federal law, many South Dakota attorneys choose to file employment discrimination cases in state court under state law only. It been considered easier in South Dakota state court to prevent summary judgment (a dismissal of the case prior to trial after presenting disputed and undisputed facts to a judge), according to some attorneys. Because of recent changes in the state judiciary, it is unclear whether this will continue to be true.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based on your federal claim. A suit based upon your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.). A suit based upon your state discrimination claim must be filed within 2 years of the last instance of discrimination against you. These deadlines are called the “statute of limitations.”

If you have received one of these EEOC notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.