CHAPTER 98: HUMAN RELATIONS
Section
General Provisions
   98.001   Definitions
   98.002   Declaration of policy and purpose
   98.003   Act of discrimination
   98.004   Contracts with city
   98.005   Responsibilities and duties of city employees
   98.006   Good faith accommodation of disabled
Commission on Human Relations
   98.020   Created
   98.021   Composition
   98.022   Appointment
   98.023   Terms
   98.024   Filling of vacancies
   98.025   Compensation
   98.026   Officers
   98.027   Meetings
   98.028   Quorum
   98.029   Rules, regulations
   98.030   Appointment of committees
   98.031   Substantive and procedural powers and duties
   98.032   Filing complaint
   98.033   Service of respondent and answer
   98.034   Determination of probable cause
   98.035   Conciliation
   98.036   Public hearing
   98.037   Dismissal of complaint
   98.038   Depositions and discovery
   98.039   Prosecution of violation
   98.040   Rights of parties to seek judicial determination
   98.041   Application to other handicaps
   98.042   Time limit for filing complaint
Disability Awareness and Accessibility Review Board
   98.085   Created
   98.086   Composition
   98.087   Terms
   98.088   Filling of vacancies
   98.089   Compensation; expense
   98.090   Officers
   98.091   Meetings; quorum; staff
   98.092   Duties and responsibilities
Cross-reference:
   Administration, see title VII
Statutory reference:
   Local commission on human relations, see SDCL 20-12-5 et seq.
   Municipal power to investigate discriminatory practices, see SDCL 20-12-4
   State commission of human rights, see SDCL 20-13-2 et seq.
GENERAL PROVISIONS
§ 98.001 DEFINITIONS.
   For the purposes of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   ADA. The Americans with Disabilities Act, being 42 U.S.C. §§ 12101 et seq.
   COMPLAINANT. A person for or on whose behalf a complaint alleging unlawful discrimination has been filed or issued.
   DISABILITY. A physical or mental impairment of a person resulting from disease, injury, congenital condition of birth or functional disorder which substantially limits one or more of the person’s major life functions; a record of having an impairment; or being regarded as having an impairment which:
      (1)   For purposes of § 98.003(a) through (c), inclusive, is unrelated to an individual’s ability to perform the major duties of a particular job or position, or is unrelated to an individual’s qualifications for employment or promotion;
      (2)   For purposes of § 98.003(d) and (h) is unrelated to an individual’s ability to acquire, rent, or maintain property; and
      (3)   For purposes of § 98.003(e) and (f) is unrelated to an individual’s ability to utilize and benefit from opportunities, programs, and facilities of the accommodations and services.
   DISCRIMINATION. Any unlawful act or attempted unlawful act which, because of race, color, sex, creed, religion, ancestry, national origin, familial status or disability, results in the unequal treatment or separation or segregation of any person or denies, prevents, limits or otherwise adversely affects or if accomplished would deny, prevent, limit or otherwise adversely affect the benefit or enjoyment by any person of employment, membership in a labor organization, ownership or occupancy of real property, a public accommodation, a public service or an educational institution. The DISCRIMINATION is unlawful and is a violation of this chapter.
   EDUCATIONAL INSTITUTION. Any university, college or school operating within the city including any school, institution or organization for vocational training, but the term shall not apply to the students of, or the education provided by, any school maintained and operated by a religious corporation, or association solely for the benefit of its own membership.
   EMPLOY. To use or be entitled to the use and benefit of the services of a person as an employee.
   EMPLOYEE. Any and all persons who perform services for any employer for compensation, whether in the form of wages, salary, commission or otherwise.
   EMPLOYER. Any person within the city who hires or employs any employee, and any person wherever situated who hires or employs any employee whose services are to be partially or wholly performed in the city, but the word EMPLOYER shall not include any person with respect to the hiring or employment of a household domestic servant, or any religious corporation, association or society with respect to the hiring or employment of individuals of a particular religion, when religion shall be a bona fide occupational qualification for employment, provided the selection is not based on race, color, ancestry or national origin or disability.
   EMPLOYMENT. The state of being employed as an employee by an employer.
   EMPLOYMENT AGENCY. Any person regularly undertaking, with or without compensation, to procure employees for any employer or to procure for employees opportunities to work for any employer and includes any agent of the person.
   FAMILIAL STATUS. The relationship of individuals by birth, adoption or guardianship who are domiciled together.
   HIRE. To engage or contract for or attempt to engage or contract for the services of any person as an employee.
   LABOR ORGANIZATION. Any person, employee representation committee or plan in which employees participate and which exists wholly or in part for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment and shall include any conference, general committee, joint or system board or joint council.
   LAWYER. A person duly authorized and licensed by the state to engage in the practice of law.
   PERSON. Includes one or more individuals, partnerships, associations, corporations, unincorporated organizations, mutual companies, joint stock companies, trusts, agents, legal representatives, trustees, trustees in bankruptcy, receivers, labor organizations, public bodies, public corporations and the state and all political subdivisions and agencies thereof.
   PUBLIC ACCOMMODATIONS. The services and facilities of any and all places of business within the city engaged generally in the provision of services or goods to the public or soliciting generally the public patronage, including, without limitation, theaters, hotels, motels, restaurants, taverns, barbershops, beauty shops, insurance companies, lending organizations, financial institutions and carriers.
   PUBLIC SERVICES. The services or facilities provided within the city to the general public including those provided by any public facility, department, agency, board or commission, owned, operated or managed by or on behalf of the state, any political subdivision thereof, or any other public corporation.
   REAL ESTATE BROKER or REAL ESTATE SALESPERSON. A real estate broker and a real estate salesperson as defined by state law.
   REAL PROPERTY. Any right, title, interest in or to the possession, ownership, enjoyment or occupancy of any parcel of land, any building situated thereon, or any portion of the building in the city.
   RESPONDENT. A person against whom a complaint alleging unlawful discrimination has been filed or issued.
(1957 Rev. Ords., § 2.1802; 1972 Code, § 13-1; 1992 Code, § 21.5-1) (Ord. 2700, passed 8-17-1970; Ord. 52-73, passed 6-25-1973; Ord. 22-81, passed 3-16-1980; Ord. 63-86, passed 6-23-1986; Ord. 51-91, passed 6-10-1991)
Cross-reference:
   Definitions and rules of construction generally, see § 10.002
§ 98.002 DECLARATION OF POLICY AND PURPOSE.
   It is the public policy of the city and the purpose of this chapter:
   (a)   That discriminatory practices based on race, color, sex, creed, religion, ancestry, national origin, familial status or disability with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations and public services, or any of them, tend to create and intensify conditions of poverty, ill health, unrest, lawlessness and vice and adversely affect the public health, safety, order, convenience and general welfare; the rights, privileges and opportunities threatened by those discriminatory practices are hereby declared to be civil rights;
   (b)   To declare as civil rights the rights of all persons to the fullest extent of their capacities, and without regard to race, color, sex, creed, religion, ancestry, national origin, familial status or disability, equal opportunities with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations and public services;
   (c)   To prevent and prohibit any and all discriminatory practices based on race, color, sex, creed, religion, ancestry, national origin, familial status or disability, with respect to employment, labor union membership, housing accommodations, property rights, education, public accommodations or public services;
   (d)   To protect all persons from unfounded charges of discriminatory practices; and
   (e)   To effectuate this policy by means of public information and education, mediation and conciliation, and enforcement.
(1957 Rev. Ords., § 2.1801; 1972 Code, § 13-2; 1992 Code, § 21.5-2) (Ord. 2700, passed 8-17-1970; Ord. 52-73, passed 6-25-1973; Ord. 63-86, passed 6-23-1986; Ord. 51-91, passed 6-10-1991)
§ 98.003 ACT OF DISCRIMINATION.
   Without limitation, the following are declared to be discrimination:
   (a)   For an employer, because of race, color, sex, creed, religion, ancestry, national origin or disability, to fail or refuse to hire, to discharge an employee, or to accord adverse, unlawful or unequal treatment to any person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, discharge, or any term or condition of employment;
   (b)   For an employment agency, because of race, color, creed, religion, sex, ancestry, disability or national origin, to accord adverse or unequal treatment to any person in connection with any application for employment, any referral or any request for assistance in procurement of employees, or to accept any listing of employment on that basis;
   (c)   For any labor organization, because of race, color, sex, creed, religion, ancestry, national origin or disability, to deny full and equal membership rights to an applicant for membership or to a member; to expel, suspend or otherwise discipline a member; or to accord adverse, unlawful or unequal treatment to any person with respect to his or her hiring, apprenticeship, training, tenure, compensation, upgrading, layoff or any term or condition of employment;
   (d)   For any owner of rights to housing or real property, or any person acting for an owner, with or without compensation, including any person licensed as a real estate broker or salesman, attorney, auctioneer, agent or representative by power of attorney or appointment, or to any person acting under court order, deed of trust, or will, because of race, color, sex, creed, religion, ancestry, national origin, familial status or disability, to fail or refuse to sell, rent, assign or otherwise transfer any real property to any other person, or to accord adverse, unlawful, or unequal treatment to any person with respect to the acquisition, occupancy, use and enjoyment of any real property. The provisions of this section do not apply to rooms or units in dwellings that contain living quarters for no more than two families living independently of each other, if the owner maintains and occupies one of the living quarters as his or her residence.
      (1)   For the purposes of determining discrimination based on familial status, a FAMILY is one or more individuals under the age of 18 who are domiciled with their parent, legal custodian or person granted custody with permission of the parent or custodian. This definition includes a person who is pregnant or in the process of securing custody of a person under the age of 18. Discrimination based on familial status applies to housing accommodations only.
      (2)   The provisions of this section as they refer to familial status do not apply to residences publicized as specifically designated for older or disabled residents and if:
         A.   A state or federal program has designated the residence for elderly;
         B.   The residences are intended for and solely occupied by persons 62 years of age or older; or
         C.   Facilities and services for the residence are designed to meet the needs of the elderly, and at least 80% of the units occupied or intended to be occupied by one or more persons 55 years of age or older.
      (3)   It is an unfair or discriminatory practice to design or construct for first occupancy any multi- family dwelling with more than four units for sale, rent, lease, assignment, sublease or transfer that does not enable accessibility to ground floor common areas and usability of ground floor housing units by disabled persons or by wheelchairs. If the building has elevators, all housing units and common areas shall be usable by disabled persons and persons in wheelchairs. The accommodations may include widened doors, lowered electrical switches and outlets, lowered environmental controls, grab bars or reinforcements, kitchens and bathrooms usable by the disabled. Nothing in this division (d)(3) may be construed to require prior approval of plans for construction by the commission on human relations.
      (4)   It is also discriminatory to refuse to permit at the expense of the disabled person reasonable modifications of existing property that may be necessary to afford full enjoyment of the property. The landlord may, where it is reasonable to do so, condition permission for remodification on the renter’s agreeing to restore the premises to the condition that existed prior to the modification, reasonable wear and tear excepted.
   (e)   For any person engaged in the provision of public accommodations, because of race, color, sex, creed, religion, ancestry, national origin, or disability, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of those public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of the services and facilities, the price or other consideration therefor, the scope and quality thereof, or the terms and conditions under which such are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation and repair;
   (f)   For any person engaged in the provision of public services, because of race, color, sex, creed, religion, ancestry, national origin or disability, to fail or refuse to provide to any person access to the use and benefit thereof, or the terms and conditions under which such are made available;
   (g)   For any person, because of race, color, sex, creed, religion, ancestry, national origin or disability, directly or indirectly, to conceal any unlawful discrimination; to aid, abet, compel, coerce, incite or induce another person to discriminate; or by any means, trick, artifice, advertisement or sign, to use any form of application, or make any record or inquiry, or device whatsoever to bring about or facilitate discrimination; or to engage in or threaten to engage in any reprisal, economic or otherwise, against any person because of the latter’s filing a charge, testifying or assisting in the observance and support of the purposes and provisions of this chapter;
   (h)   For any person, bank, banking organization, mortgage company, insurance company or other financial institution or lender to whom application is made for financial assistance for the purchase, lease, acquisition, construction, rehabilitation, repair or maintenance of any real property or any agent or employee thereof to discriminate against any person or group of persons, because of the race, color, sex, creed, religion, ancestry, national origin or disability of the person or group of persons or of the prospective occupants or tenants of the real property in the granting, withholding, extending, modifying, renewing or in the rates, terms, conditions and the extension of services in connection therewith;
   (i)   Wherever religious organizations or bodies are exempt from any of the provisions of this chapter, the exemption shall apply only to religious qualifications for employment or residence in church-owned or church-operated property, and the organizations shall not be exempt from any provisions of this chapter relating to discrimination based upon race, color, sex, ancestry, national origin, familial status or disability.
   (j)   Nothing contained in this chapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of the business or enterprise under which a preferential treatment is given to any individual because the individual is an Indian living on or near a reservation;
   (k)   Nothing in this chapter requires the following people to modify property in any way, incur any additional expenses, or exercise a higher degree of care for persons having a disability than for a person who does not have a disability nor does this chapter relieve any person of any obligations generally imposed on all persons, regardless of any disability, in a written lease, rental agreement, or contract of purchase or sale, or to forbid distinctions based on the inability to fulfill the terms and conditions, including, but not limited to, financial obligations of the lease, agreement or contract.:
      (1)   Employer;
      (2)   Provider of public accommodations;
      (3)   Provider of public services;
      (4)   Person selling, renting, or leasing real property;
      (5)   Person acting on behalf of any of the persons listed in divisions(a)(11)A. through D. above, with or without compensation, including but not limited to any person licensed as a real estate broker or salesman, attorney, auctioneer, agent, or representative by power of attorney or appointment; and
      (6)   Person acting under court order, deed of trust or will.
(1957 Rev. Ords., § 2.1803; 1972 Code, § 13-3; 1992 Code, § 21.5-3) (Ord. 2700, passed 8-17-1970; Ord. 52-73, passed 6-25-1973; Ord. 22-81, passed 3-16-1980; Ord. 63-86, passed 6-23-1986; Ord. 51-91, passed 6-10-1991)
§ 98.004 CONTRACTS WITH CITY.
   The city and all of its contracting agencies, departments, and units shall include in all contracts entered into or renewed or extended provisions whereby each other contracting party agrees that:
   (a)   With respect to any and all business conducted or acts performed pursuant to the contract, the other contracting party shall be deemed an employer within the meaning of this chapter and shall be subject to the provisions of this subchapter;
   (b)   If the other contracting party fails to perform the contractual provisions, the contract may forthwith be terminated and cancelled in whole or in part by the city, and the other contracting party shall be liable for any costs or expense incurred by it in obtaining from other sources the work and services to be rendered or performed or the goods or properties to be furnished or delivered to the city under the contract so terminated or cancelled;
   (c)   Should the commission on human relations in a proceeding brought as provided in this chapter find that the contracting party has engaged in discrimination in connection with any contract and issue a cease and desist order with respect thereto, the city shall withhold up to 15% of the contract price until a time as the commission’s order has been complied with or the other contracting party has been adjudicated not guilty of discrimination;
   (d)   Other contracting party will permit access to any and all records pertaining to hiring and employment and to other pertinent data and records for the purpose of enabling the commission on human relations, its agencies or representatives, to ascertain compliance with the provisions of this chapter applicable to the other contracting party; and
   (e)   This section shall be binding on all subcontractors or suppliers.
(1957 Rev. Ords., § 2.1804; 1972 Code, § 13-4; 1992 Code, § 21.5-4) (Ord. 2700, passed 8-17-1970)
§ 98.005 RESPONSIBILITIES AND DUTIES OF CITY EMPLOYEES.
   All officials, commissioners, agents, employees and servants of the city, elected and appointed, including civil service employees, and whether serving with or without compensation, shall observe the terms and provisions of this chapter and shall, except as expressly prohibited by law, respond promptly to any and all requests by the commission on human relations for information and for access to data and records for the purpose of enabling the commission to carry out its responsibilities under this chapter. The failure of any official, commissioner, agent, employee or servant of the city to comply with any provision of this chapter relating to any matter within the scope of his or her official duties shall be deemed a violation of this chapter.
(1957 Rev. Ords., § 2.1805; 1972 Code, § 13-5; 1992 Code, § 21.5-5) (Ord. 2700, passed 8-17-1970)
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