Employment Discrimination Demand Letter - South Dakota

EMPLOYMENT DISCRIMINATION DEMAND LETTER

South Dakota Human Relations Act — State Claim

[ATTORNEY / FIRM LETTERHEAD]

Date: [DATE]

Via: [TRACKED MAIL / EMAIL / OTHER]

[EMPLOYER OR COUNSEL NAME]

[COMPANY LEGAL NAME]

[ADDRESS]

[EMAIL]

Re: [EMPLOYEE NAME] — alleged discrimination / reprisal under SDCL chapter 20-13

Dear [NAME]:

Our office represents [Employee] regarding the employment actions described below. This demand is directed to a South Dakota Human Relations Act claim. Any federal, tribal, contractual, public-employee, or other claim must be analyzed and calendared separately; this letter does not assume that a state filing automatically preserves another claim.

1. PARTIES AND COVERAGE

1.1 Employee

1.2 Employer

SDCL § 20-13-1(7) defines an employer as a person in South Dakota who hires or employs any employee, and also a person elsewhere who hires or employs an employee whose services are partly or wholly performed in South Dakota. The state definition does not use the federal 15-employee threshold.

Employer and South Dakota service facts: [DETAIL].

1.3 State Protected Basis

Check only a basis supported by facts and current law:

☐ Race: [DETAIL]

☐ Color: [DETAIL]

☐ Creed: [DETAIL]

☐ Religion: [DETAIL]

☐ Sex: [DETAIL]

☐ Ancestry: [DETAIL]

☐ Disability: [DETAIL]

☐ National origin: [DETAIL]

Current SDCL §§ 20-13-1(19) and 20-13-10 list these eight bases. The Division's current employment guidance describes sex as including pregnancy. Age, genetic information, sexual orientation, and gender identity are not separately listed in the current state section; do not plead them as express § 20-13-10 categories without an independently grounded legal theory. Evaluate any federal or other protection separately.

For a disability claim, address § 20-13-1(4)'s definition and its employment requirement that the impairment be unrelated to the person's ability to perform the major duties of the job or to employment or promotion qualifications:

[IMPAIRMENT / RECORD / REGARDED-AS FACTS, MAJOR-LIFE-FUNCTION FACTS, JOB DUTIES, QUALIFICATIONS, AND ACCOMMODATION HISTORY]

2. FACTUAL CHRONOLOGY

Employee performed the role or met the relevant qualification as follows: [FACTS].

The challenged action was: ☐ refusal to hire ☐ discharge ☐ adverse or unequal treatment in application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or another term or condition of employment.

Employer's stated reason, if any: [REASON].

Evidence supporting an inference that the protected basis affected the action:

• decision-maker statements: [DETAIL];
• comparator evidence: [DETAIL];
• timing and sequence: [DETAIL];
• departure from policy or inconsistent explanation: [DETAIL]; and
• other direct or circumstantial evidence: [DETAIL].

3. STATE CLAIMS

3.1 Employment Discrimination — SDCL § 20-13-10

Section 20-13-10 makes it an unfair or discriminatory practice for any person, because of a listed protected basis, to fail or refuse to hire, discharge, or accord adverse or unequal treatment concerning the listed employment opportunities and terms.

Employee alleges that Employer took [ACTION] because of [LISTED BASIS], supported by: [FACTS].

3.2 Reprisal or Assistance — SDCL § 20-13-26

Use only if supported. Section 20-13-26 addresses concealing, aiding, compelling, coercing, inciting, inducing, or facilitating discrimination and reprisal against a person because that person filed a charge, testified, or assisted in observance and support of chapter 20-13.

Protected participation or assistance: [DETAIL].

Knowledge, reprisal, and causal facts: [DETAIL].

☐ This count is asserted. ☐ This count is not asserted.

4. DEADLINES AND PROCEDURAL STATUS

4.1 State Charge

SDCL § 20-13-31 requires a chapter 20-13 charge within 180 days after the alleged discriminatory or unfair practice occurred. A private demand does not extend that period.

The current Division forms page provides an electronic Charging Party Intake Form (Employment). Confirm with DHR whether an intake has become a filed charge; do not treat a draft, demand, or incomplete intake as timely filing without agency confirmation.

4.2 Election to Circuit Court

The state civil route is not “two years after a right-to-sue letter.” Under § 20-13-35.1:

1. the charging party or respondent may elect a civil action no later than 20 days after issuance of the notice requiring the respondent to answer the charge;
2. DHR or the Commission then issues written notice of the election and one-year limitation; and
3. the civil action must be filed within one year of the election, with the one-year period beginning on the date of the election notice.

If no timely civil election is made, the matter remains on the administrative path described by chapter 20-13. Do not infer another court route from this demand.

4.3 Separate Federal or Other Claims

This state deadline chart does not calculate an EEOC charge period, federal notice-of-right-to-sue period, federal employee threshold, federal damages cap, age claim, disability claim under federal law, constitutional claim, or contractual limitation. Counsel should create a separate current-law chart for every additional claim before sending this demand.

5. REMEDY ANALYSIS

5.1 Administrative Path — SDCL § 20-13-42

After an administrative hearing and a finding of a discriminatory or unfair practice, the Commission's order may require cease-and-desist and affirmative action, including hiring, reinstatement, upgrading, with or without back pay, as well as other listed compliance measures and compensation incidental to the violation. Section 20-13-42 excludes pain-and-suffering, punitive, and consequential damages from that administrative compensation. It mentions reasonable attorney fees only for housing matters, not ordinary employment matters.

Requested administrative resolution:

☐ hiring / reinstatement / upgrading: [DETAIL]

☐ back pay and benefit restoration: [CALCULATION]

☐ policy, training, posting, reporting, or other affirmative action: [DETAIL]

☐ other appropriate relief grounded in the facts: [DETAIL]

5.2 Elected Civil Path — SDCL § 20-13-35.1

In a timely elected civil action, a court or jury finding an unfair or discriminatory practice may award compensatory damages, and the court may grant injunctive relief, including affirmative action. Section 20-13-35.1 does not authorize punitive damages for a basic § 20-13-10 employment-discrimination count. It lists punitive damages, under § 21-3-2, for specified housing/public-accommodation provisions and § 20-13-26. It lists prevailing-party attorney fees and costs only for housing matters.

Proposed nonduplicative civil valuation:

Employee has mitigated or will mitigate loss by: [JOB SEARCH / INTERIM EARNINGS / OTHER].

6. SETTLEMENT PROPOSAL

To resolve the identified dispute, Employee proposes:

1. payment of $[AMOUNT], allocated as [BACK PAY / BENEFITS / OTHER];
2. [REINSTATEMENT / NEUTRAL REFERENCE / PERSONNEL-FILE CORRECTION / POLICY CHANGE];
3. a lawful nonretaliation term;
4. agreed tax reporting and withholding treatment reviewed by the parties' advisors;
5. a release limited to identified claims and an agreed effective date; and
6. [OTHER TERM].

Please respond by [DATE]. This negotiated response period is not a statutory extension and does not toll the 180-day charge deadline, the 20-day election period, the one-year civil filing period, or any separate deadline.

No settlement is effective until complete terms are written and signed by authorized parties. Any confidentiality, nondisparagement, cooperation, no-rehire, or waiver term must receive claim-specific legal review.

7. PRESERVATION REQUEST

Please preserve potentially relevant paper and electronic information, including:

• applications, personnel files, job descriptions, evaluations, discipline, and termination records;
• policies and training concerning discrimination, harassment, reprisal, and accommodations;
• communications among decision makers and with Employee;
• comparator records maintained in the ordinary course, subject to lawful confidentiality safeguards;
• payroll, benefit, vacancy, hiring, promotion, and replacement records; and
• system metadata, messages, calendars, and audit trails relevant to the challenged decisions.

This request does not state that sanctions are automatic; applicable preservation duties and remedies depend on the actual or reasonably anticipated proceeding.

Sincerely,

[ATTORNEY NAME]

[FIRM / SOUTH DAKOTA BAR NUMBER]

OFFICIAL SOURCES

• South Dakota Legislature current statutes: https://sdlegislature.gov/api/Statutes/Statute/20-13-1 ; https://sdlegislature.gov/api/Statutes/Statute/20-13-10 ; https://sdlegislature.gov/api/Statutes/Statute/20-13-26 ; https://sdlegislature.gov/api/Statutes/Statute/20-13-31 ; https://sdlegislature.gov/api/Statutes/Statute/20-13-35.1 ; https://sdlegislature.gov/api/Statutes/Statute/20-13-42
• South Dakota Division of Human Rights, employment guidance: https://dlr.sd.gov/human_rights/employment.aspx
• South Dakota Division of Human Rights, current intake forms: https://dlr.sd.gov/human_rights/forms.aspx
• South Dakota Division of Human Rights, investigations: https://dlr.sd.gov/human_rights/investigations.aspx

END OF DOCUMENT