The South Dakota Human Relations Actdoes not prohibit discrimination in employment on the basis of age (SD Cod. Laws Sec. 20-13-1 et seq.). However, employers with 20 or more employees are covered under the federal Age Discrimination in Employment Act (ADEA). The ADEA prohibits employment practices that discriminate against job applicants and employees who are 40 years of age or older.
Consistent application of policies. The 8th Circuit Court of Appeals ruled in favor of an employer that fired an older worker for violating its policies (Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d 639 (8th Cir. 2008)). In this case, the former employee claimed he was fired because of his age in violation of federal law under the Age Discrimination in Employment Act (ADEA), and that younger employees who had violated the employer's policies were treated more favorably. However, the employer provided evidence that the employee had stolen large amounts of company property from the employer and that it had fired two younger employees for similar offenses. The court concluded that the employee did not have sufficient evidence to show that the employer had retained younger employees who engaged in similar misconduct.
Practical tip: Employers may be able to avoid liability by showing that their policies are applied in a consistent and fair manner. Even if an employer is shown later to have been mistaken in its belief about a company violation, the mistake is not proof that the adverse employment action was discriminatory.