The South Dakota Human Relations Act prohibits employers from making inquiries of prospective employees that elicit or attempt to elicit any information, directly or indirectly, pertaining to race, color, creed, religion, sex, ancestry, disability, or national origin (SD Cod. Laws Sec. 20-13-1 et seq.). The law applies to all employers in the state.
Bona fide occupational qualification (BFOQ) exception. An employer may make an employment inquiry about a protected characteristic only if it is reasonably necessary to the normal operation of the employer's business and there is no less-intrusive way to ensure that the applicant will be able to perform the essential functions of the job in question. In order to be a BFOQ, a characteristic must be absolutely essential to the applicant's ability to perform the job. For example, being female would be a legitimate BFOQ for a person applying for a job as a model of women's clothing. The BFOQ exception applies only in limited circumstances, and in general, courts have been extremely reluctant to sanction otherwise discriminatory practices on BFOQ grounds. Employers should use caution in relying on the BFOQ rationale and should always consult with legal counsel before making any inquiries on the basis of a BFOQ.
The Smokers' Rights Law prohibits discrimination against individuals who use tobacco products off the employers' premises during nonworking hours, unless a smoking restriction is based on a BFOQ (SD Cod. Laws Sec. 60-4-11).
Guidance on Preemployment Inquiries. South Dakota's Division on Human Rights has prepared a Pre-Employment Inquiry Guide, which contains a discussion of state law requirements on preemployment inquiries, together with a listing of ...