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Division of Human Rights

Sexual Harassment/Discrimination

Definitions

Both males and females can be victims of sexual harassment. Sexual harassment occurs when:

• Employment decisions are based upon acceptance or refusal of sexual advances. For example, a person is fired for having refused a sexual advance. This is called "quid pro quo" harassment, meaning "this for that."
• A working environment is so intimidating, patently offensive or sexually hostile as to hinder a person's ability to do their work. A supervisor, co-worker or someone else whom the victim comes in contact on the job creates an abusive work environment or interferes with the employee's work performance through words or deeds because of the victim's gender. This is called "hostile environment" harassment.

What Employers Must Do

South Dakota law prohibits harassment based on sex and once an employer is made aware of a sexual harassment situation, they must take action to correct the situation, no matter how trivial it may appear. The employer must:

• Immediately investigate the allegations to find out what happened and take appropriate action.
• Eliminate the harassing behavior by considering the severity of the alleged conduct and responding appropriately.
• Conduct follow up interviews with the victim and the alleged harasser to tell them what is happening and why.
• See to it that the work atmosphere remains free from sexual harassment.
• The employer should not attempt to resolve the matter by putting the victim and alleged harasser in the same room together. Not only is this intimidating, it could be construed as retaliation.

The employer is not required to fire an alleged harasser.

What Has to Be Proved

In 1991 the South Dakota Supreme Court adopted requirements for sexual harassment and employer liability. This means in order to win a sexual harassment claim, the victim must show:

• He or she belongs to a protected group and was subject to unwelcome sexual harassment.
• The harassment was based on sex and affected the victim's employment.
• The employer knew or should have known of the harassment and failed to take proper action.

Prevention

Making sure it never happens in the first place is the best way to eliminate sexual harassment in the workplace. Employers should:

• Take all steps necessary to prevent sexual harassment from occurring.
• Have an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented.
• Affirmatively raise the subject with all personnel, express strong disapproval and explain the sanctions for harassment.

Resources Available

Download a Sexual Harassment brochure in English or Spanish (Adobe PDF.)

Also available is a Sample Sexual Harassment Policy as a reference for employers in developing their own policy.

Disclaimer

The information provided on this website should in no way be considered legal advice. For specific information about your legal rights, you should consult your personal attorney. If you have a general question, contact us.