The South Dakota Human Relations Act prohibits discrimination in employment on the basis of sex (including pregnancy) (SD Cod. Laws Sec. 20-13-10 et seq.). The Act applies to all employers in the state.
Bona fide occupational qualification (BFOQ) exception. Differences in treatment may be permissible when sex is a BFOQ for the particular job involved. Under South Dakota law, sex is considered to be a BFOQ if it is “necessary for the authenticity or genuineness” (e.g., requiring females as actresses, males to model men's clothing) (SD Admin. Rules Sec. 20:03:09:02). These exceptions are narrowly interpreted, however, and employers should exercise extreme caution when relying on a BFOQ exception. The regulations expressly state that the preferences of coworkers, the employer, clients, or customers do not qualify as BFOQ exceptions. Generally, employers may not classify a job as a “male” or “female” job or maintain separate lines of progression or separate seniority lists based on gender unless sex is a BFOQ for that job.
Exceptions for seniority and other systems. The Act permits employers to differentiate based on gender when the difference is based on seniority, job description, merit, or executive training systems (SD Cod. Laws Sec. 20-13-17).
Gender stereotypes. The 8th Circuit Court of Appeals has ruled that an adverse employment decision based on gender stereotyping is unlawful sex discrimination (Lewis v. Heartland Inns of Am., LLC, 591 F. 3d 1033 (8th Cir. 2010)). In this case, the employee was promoted by her manager to a dayshift position as a hotel front desk clerk. However, when the director of operations saw the employee, the director said she lacked the "Midwestern girl look." The employee ...