Navigating Same-Sex Workplace Sexual Harassment Claims in South Dakota

Employees in South Dakota who experience sexual harassment from a supervisor or coworker of the same sex often face an added layer of skepticism when they step forward. Whether on a manufacturing floor in Sioux Falls, a construction site in Rapid City, or a hospital wing in Aberdeen, Human Resources departments frequently attempt to brush off same-sex abuse as harmless locker-room horseplay, hazing, or a mere personality conflict.

State and federal statutes leave no room for that excuse. Both federal law under 42 U.S.C. § 2000e-2 and the South Dakota Human Relations Act under S.D. Codified Laws § 20-13-10 protect every worker from sex-based discrimination and harassment regardless of the gender of the perpetrator or the targeted employee. Navigating same-sex workplace sexual harassment claims in South Dakota involves applying binding U.S. Supreme Court and Eighth Circuit precedents so management cannot dismiss the misconduct.

The Legal Foundation: Oncale, Bostock, and South Dakota Law

In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (US Supreme Court 1998), the U.S. Supreme Court unanimously held that same-sex sexual harassment is actionable under Title VII, emphasizing that the statutory prohibition against discrimination 'because of sex' protects men and women equally from abuse by members of their own gender. Decades later, the Supreme Court reinforced this principle in Bostock v. Clayton County, 590 U.S. 644 (US Supreme Court 2020), ruling that discriminating against or harassing an employee based on sexual orientation or gender identity necessarily involves discrimination because of sex.

In South Dakota state courts, claims under S.D. Codified Laws § 20-13-10 follow the hostile work environment standards adopted in Huck v. McCain Foods, 479 N.W.2d 167 (SD Supreme Court 1991) and Williams v. South Dakota Department of Agriculture, 779 N.W.2d 397 (SD Supreme Court 2010). Under Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (US Supreme Court 1998), a plaintiff does not have to show that the harasser is gay or motivated by sexual attraction; instead, courts recognize three distinct evidentiary pathways to demonstrate that same-sex harassment occurred 'because of sex.'

Specific Same-Sex Harassment Contexts in South Dakota

Male-on-Male Locker Room Harassment in Blue-Collar Jobs

In blue-collar industries across South Dakota-including manufacturing plants, meatpacking facilities, agricultural operations, and construction crews-male-on-male harassment often takes the form of aggressive physical hazing, simulated sexual acts, or grabbing and striking a coworker's genitals (commonly called 'bagging'). Employers frequently try to defend these cases by claiming the perpetrators are heterosexual men engaging in rough shop-floor teasing.

The Eighth Circuit Court of Appeals, which holds direct federal appellate jurisdiction over South Dakota, squarely rejected that defense in Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996). In that case, a male production worker in a predominantly male plant was repeatedly grabbed in the groin by male coworkers while supervisors did nothing. The Eighth Circuit ruled that because male employees were specifically targeted for physical abuse of their sexual organs while female workers were not, the harassment was based on sex and created an actionable hostile work environment.

Female-on-Female Workplace Harassment

Same-sex harassment among women occurs in corporate offices, retail stores, hospitality venues, and healthcare facilities throughout South Dakota. It can involve a female supervisor making unwanted sexual advances toward a female subordinate, a coworker repeatedly touching another woman's breasts or buttocks, or a group of female colleagues spreading graphic, sexually derogatory rumors and interrogating a coworker about her intimate life.

Under Harris v. Forklift Systems, Inc., 510 U.S. 17 (US Supreme Court 1993), when sex-based commentary or physical boundary violations among female employees become severe or pervasive enough to create an abusive working environment, the employer has the exact same legal duty to intervene as it would if the harasser were male.

Dealing With Gender Stereotyping Combined With Sexual Harassment

Many same-sex harassment cases involve a combination of crude sexual behavior and hostility toward an employee who does not fit rigid expectations of masculinity or femininity. For example, male coworkers might subject a soft-spoken male colleague to homophobic slurs and graphic sexual taunts because he does not participate in locker-room bragging, or a female manager might harass a female tradesperson for dressing in a traditionally masculine style.

Under Price Waterhouse v. Hopkins, 490 U.S. 228 (US Supreme Court 1989) and Bostock v. Clayton County, 590 U.S. 644 (US Supreme Court 2020), punishing or harassing an employee for failing to conform to gender norms constitutes unlawful sex discrimination. Combining gender-stereotyping evidence with sexualized harassment often strengthens both administrative charges and court filings.

How Employees Overcome HR Biases When Reporting Same-Sex Abuse

When workers verbally report same-sex harassment using general terms like 'hazing,' 'bullying,' or 'picking on me,' HR representatives often classify the complaint as a non-legal interpersonal dispute. To counter this bias, claimants generally submit their complaint in writing and explicitly state that they are reporting sex-based harassment and a sexually hostile work environment under company policy and civil rights laws, detailing the exact sexual nature of the touching, comments, or gender-stereotyping slurs. Once formal written notice is placed on record, any attempt to fire, demote, or cut the employee's hours can trigger retaliation liability under S.D. Codified Laws § 20-13-26 and 42 U.S.C. § 2000e-3(a).

Step-by-Step Process in South Dakota

Employees in Sioux Falls, Rapid City, Aberdeen, Pierre, and across South Dakota generally follow these structured steps to address same-sex workplace harassment.

Step 1: Gathering Documents and Comparative Treatment Evidence

Most claimants maintain a private, dated journal outside of work documenting each incident of unwanted touching, simulated sexual behavior, propositions, or gender-based slurs. Noting whether the harasser treats coworkers of the opposite sex differently provides helpful comparative proof under Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (US Supreme Court 1998).

Step 2: Delivering a Formal Written HR Complaint

Claimants typically follow the reporting procedure in the employee handbook as contemplated under Faragher v. City of Boca Raton, 524 U.S. 775 (US Supreme Court 1998), sending an email to Human Resources and upper management that clearly describes the same-sex sexual harassment, names witnesses, and requests separation from the harasser.

Step 3: Dual-Filing With the South Dakota Division of Human Rights and EEOC

Under Montgomery v. Big Thunder Gold Mine, Inc., 531 N.W.2d 577 (SD Supreme Court 1995), an employee must exhaust administrative remedies before filing a discrimination lawsuit. Applicants file Form Charging Party Intake, South Dakota, Division of Human Rights, Charging Party Intake Form (Employment) with the South Dakota Department of Labor and Regulation, Division of Human Rights, Pierre (700 Governors Drive, Pierre, SD 57501, phone 605-773-4493), and often dual-file Form 5, FED, U.S. Equal Employment Opportunity Commission, Charge of Discrimination with the U.S. Equal Employment Opportunity Commission, Minneapolis Area Office, Minneapolis.

Step 4: Responding to the Employer's Position Statement

During the investigation under S.D. Codified Laws § 20-13-29, employers frequently argue that same-sex misconduct was merely mutual shop-floor horseplay. Claimants and their attorneys typically submit witness declarations and rebuttal evidence demonstrating that the conduct was unwelcome and sex-based under Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996).

Step 5: Engaging in Agency Conciliation or Mediation

If the Division of Human Rights issues a probable cause determination under S.D. Codified Laws § 20-13-32, the parties are invited to participate in formal conciliation to negotiate financial compensation and workplace corrective measures.

Step 6: Filing a Civil Lawsuit in State Circuit Court or Federal District Court

After the administrative stage or upon electing a civil action under S.D. Codified Laws § 20-13-35.1, a plaintiff may file a state lawsuit using Form UJS-232, South Dakota, Unified Judicial System, Civil Case Filing Statement in the Minnehaha County Circuit Court, Second Judicial Circuit, Sioux Falls or the Pennington County Circuit Court, Seventh Judicial Circuit, Rapid City. Alternatively, federal Title VII claims are filed with Form JS-44, FED, U.S. District Court, Civil Cover Sheet in the U.S. District Court for the District of South Dakota, Southern Division, Sioux Falls or the U.S. District Court for the District of South Dakota, Western Division, Rapid City.

How Much Does It Cost in South Dakota?

Understanding the financial structure of a same-sex harassment claim helps workers evaluate their legal options:

• Agency Charge Filing Fee: $0 to file an administrative charge with the South Dakota Division of Human Rights or the EEOC.
• Court Filing Fees: Filing a civil complaint in South Dakota Circuit Court costs $72 ($25 statutory filing fee, $40 automation fee, and $7 law library fee), while filing a federal lawsuit in the U.S. District Court for the District of South Dakota costs $405.
• Employment Lawyer Contingency Fees: Most South Dakota employment attorneys handle harassment claims on a 33% to 40% contingency fee basis, collecting legal fees only if they secure a settlement or judgment.
• Federal Statutory Damage Caps: Under 42 U.S.C. § 1981a(b)(3), combined federal compensatory and punitive damages are capped between $50,000 and $300,000 depending on the employer's headcount, in addition to uncapped back pay and attorney fee awards.

How Long Does the Process Take?

Under S.D. Codified Laws § 20-13-31, an employee has 180 days from the discriminatory act to file a state charge. Under 42 U.S.C. § 2000e-5(e)(1), the window is up to 300 days to file a federal Title VII charge with the EEOC. Administrative investigations typically take 6 to 12 months, and once a federal Notice of Right to Sue is issued, the claimant has 90 days to file in federal court. Because same-sex claims benefit from careful legal framing from the outset, consider reaching out to an experienced local attorney in our South Dakota lawyer directory.

Frequently Asked Questions (FAQ)