South Dakota Division of Human Rights
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Purpose of Guide
On July 1, 1972, the South Dakota Human Relations Act became effective. Under this law it is illegal for employers to discriminate against persons because of their race, religion, color, national origin, creed, ancestry, sex, or disability. Many pre-employment inquiries can be used to discriminate on those bases and are best excluded from the pre-employment process. This guide is intended to help employers identify such inquiries and to therefore avoid possible unlawful discrimination.
If should be understood that this is not a complete definition of what should or should not be asked of applicants.
This Act is not intended to prohibit employers from obtaining all the information about applicants they deem pertinent, so long as discrimination does not result from asking the question. This Act does not restrict the rights of employers to define qualifications necessary for satisfactory job performance, but does require that nondiscriminatory standards of qualifications for hiring be applied equally to all applicants. Questions on application forms and in interviews should be limited to only those actually used to make the hiring or promotional decision.
SUBJECT |
PREFERRED INQUIRIES |
SUSPECT INQUIRIES |
Name |
Has applicant ever used a different name? |
Original name of applicant if it has been changed by court order.Male applicant - maiden name of wife. |
Residence |
Place of residence. |
How long have you lived at your present address?Do you own your home? |
Place of Birth |
Birth place of applicant.Requirement that applicant submit birth certificate or baptismal record. |
|
*Age |
Under eighteen?Submission of certificate of age or work permit in compliance with Child Labor Laws. |
Date of Birth |
Religion or
|
Can you work the stated hours? |
Any inquiry to indicate or identify religion, denomination or customs.Can you work on a certain religious holiday? |
Race or Color |
Photograph may be required after hiring for identification purposes. |
Any inquiry which would indicate race or color.Request photograph before hiring. |
Experience |
Inquiry into previous work experience. |
|
Citizenship |
Are you legally authorized to work in the United States? |
If native-born or naturalized.Proof of citizenship (may be requested after applicant is hired)Whether parents or spouse are Citizens. |
National
|
An inquiry into place of birth of applicant, parents, grandparents, spouse.Any other inquiry into national origin. |
|
Education |
Inquiry into what academic, vocational, professional school attended.Inquiry into language skills and fluency, where pertinent. |
|
Conviction,
|
Ask or check into a person’s arrest, court or conviction record if not substantially related to functions of employment. |
|
Relatives |
Name of relatives already employed by this company. |
Names and address of any relatives other than spouse and dependent children. |
Notice in
|
Name and address of person to be notified in case of accident or emergency. |
Name and address of relative to be notified of accident or emergency. |
Sex or
|
Can you work the stated hours? |
Sex or Marital status or any question which would determine same. Does your spouse have any objection to your working? Spouses occupation.Do you have pre-school children? |
Pregnancy |
Inquiries into future job availability and future employment plans. |
Are you pregnant?Do you plan to have a family?Do you practice birth control? |
References |
Request references from applicant’s pastor. |
|
* Covered by the Federal Age Discrimination in Employment Act of 1967.
Advertising
In placing ads or posting job notices, employers should be careful not to indicate preferences according to age or sex. it is unlawful for ads or notices to contain terms such as "age 25-35," "boy," "girl," "college student," "housewife." It is acceptable to state: "part-time during school hours," "20 hours per week," "hours five to eight," etc.
Ads should not be placed under the heading "Help Wanted-Male" or Help Wanted-Female." Job titles designating a man or woman should be replaced with neutral titles: Salesman-Salesperson, Girl Friday-General Office, Pretty or Handsome-Well Groomed.
Testing
In order to be lawful, tests must have a valid relation to the jobs they test for. The tests, their administration and the action taken on their results must not be designed, intended or used to discriminate. Employers should note that many paper-and pencil tests have been found to be discriminatory against minorities because they have a disproportionate impact on minorities and have not been validated.
Terms, Conditions and Privileges
The SD Human Relations Act prohibits discrimination in the terms, condition and privileges of employment. This does not mean only wages. An employee is entitled to equal treatment in: rotation of assignments, transfers, promotion and seniority, dress and appearance, use of company facilities, trial periods on jobs, hours of work, rest or lunch periods and coffee breaks, leave-of-absence benefits, smoking privileges while working and any other term or condition of employment.