Workers in South Dakota are employed on an “at will” basis, meaning that employers may terminate an employee for any reason or no reason at all, so long as the reason for termination is not illegal. Some of the more well-known illegal reasons for termination are discrimination on the basis of sex, race, color, and religious affiliation. Terminating an employee because he or she has previously reported discrimination is also illegal.
If you believe that you have been terminated for an illegal reason, what do you do? The following is a basic guide on filing a complaint for discrimination, but you should consult at an attorney for more specific direction:
1. Know your rights – If you believe you have been disciplined or terminated because of your sex, race, color, or religious affiliation (or any other protected category), you have the right to file a complaint with the State of South Dakota and/or the United States of America. However, going straight to a court of law is not an option, initially. You must file with one of these agencies listed below first.
2. Where do I file a complaint? – Most people can file a complaint with the South Dakota Department of Labor’s Division of Human Rights (“SDDHR”) or the United States Equal Employment Opportunity Commission (“EEOC”). However, if you were employed by the federal government, there is a different procedure that must be followed. Federal employees should contact their local Equal Employment Opportunity Compliance Director for more information on filing a complaint. Generally, you can file your complaint with either agency and it is not necessary to file a complaint with both agencies. However, if you were employed with the State of South Dakota, you must file a complaint with the SDDHR.
3. When should I file a complaint? – Generally, it is best to file a complaint with the appropriate agency as soon as possible. That way, the facts are still fresh in your mind and any potential witnesses’ minds. At a minimum, a complaint must be filed with the SDDHR within 180 days of your termination, and with the EEOC within 300 days of your termination. Timeliness of your complaint is imperative and you may lose your ability to file a complaint with the agency and with a court of law if you do not file timely with the SDDHR and/or EEOC.
4. What do I need? — Gathering the appropriate information is key to the success of your claim. Documents such as your job description, discipline history, employment evaluations, and written correspondence (including emails and text messages) with the key players will be necessary as your claim is processed and investigated. If you have these documents, hold on to them and make copies. If you do not have these documents, there will be an opportunity for you to request these documents later in the process.
5. How do I file a complaint? – The SDDHR intake form can be obtained at the South Dakota Department of Labor & Regulation website, www.dlr.sd.gov. Once at the home page, click on the “Find a Form” tab at the top near the center and select “Discrimination Complaints.” From there, select “Charging Party Intake Form (Employment).” If you would prefer to file a charge with the EEOC, the instructions and forms may be obtained at www.eeoc.gov.
6. Next steps – After submitting your complaint, a formal charge of discrimination will be sent to you for your review and signature. You must sign the charge in front of a notary public and send it back to the Department of Labor and Regulation. If you filed a complaint with the EEOC, it will be “cross filed” with the SDDHR, meaning that it is sent to the SDDHR for investigation. An investigator will call you to ask you questions about your complaint. However, keep in mind that a determination will likely take several months.
7. The probable cause determination – Once the investigation is completed, a determination of probable cause will be made. The SDDHR will either find that there is probable cause to believe discrimination occurred, or no probable cause to believe discrimination occurred. If there is a determination that there is probable cause to believe discrimination occurred, the SDDHR may require a hearing and/or mediation to resolve the issue. You also have the option to receive a “right to sue” authorization, which means that you can take the case to court for determination. You have the same right even if it is determined that there is no probable cause to believe discrimination occurred. In most cases, the EEOC will defer to the SDDHR’s determination.
8. The lawsuit – It is your choice to file in state court or federal court. However, it is highly recommended that you consult an attorney at this point to fully inform you of all considerations you should take in making your decision.
As stated above, this is only a brief guide to filing a complaint of discrimination. The bottom line is that you must file your complaint with either the SDDHR or the EEOC before you may do anything else. It is also very important to be mindful of time limits when filing your complaint. While the complaint process is designed for laypersons to file a complaint without an attorney, it is always recommended to consult an attorney when doing so.