## Hostile work environment in South Dakota A **hostile work environment** is workplace harassment severe + pervasive enough to alter conditions of employment. South Dakota employees must show specific elements — and post-2024 EEOC enforcement guidance has lowered some traditional thresholds. ## Required elements **To prevail:** 1. **Unwelcome conduct** 2. **Based on protected status** 3. **Severe OR pervasive** 4. **Subjectively + objectively hostile** 5. **Employer's responsibility** ## Protected statuses **Federal protections (Title VII):** - Race - Color - Religion - Sex (including LGBT per Bostock) - National origin - Pregnancy **Other federal:** - Disability (ADA) - Age 40+ (ADEA) - Genetic information (GINA) - Military / veteran status (USERRA) **State law often broader:** - Sexual orientation + gender identity (state explicit) - Marital status - Source of income - Other protected categories **${s.name} specific** protections. ## Severity vs pervasiveness **Either severe OR pervasive:** **Severe (single incident sometimes enough):** - Physical threats / violence - Sexual assault - Specific extreme conduct - Single egregious act - Faragher / Ellerth standard **Pervasive (pattern over time):** - Repeated incidents - Continuing course of conduct - Cumulative effect - Multiple harassers - Workplace-wide issues **Combined analysis:** - Even mild conduct if pervasive enough - Even single incident if severe enough - Specific factual analysis ## Subjective + objective hostility **Subjective:** - Plaintiff perceived hostile - Specific individual experience - Cannot be hyper-sensitive only **Objective:** - Reasonable person would perceive hostile - From perspective of victim's group - Cultural + contextual factors - Industry norms (sometimes) **Both required.** ## EEOC 2024 guidance — lowered thresholds **Notable changes:** **Sexual harassment specifically:** - Lowered "severe + pervasive" interpretation - Aggregation across all forms of harassment - Modern workplace recognition - Online + remote work harassment **Practical effect:** - More cases qualify - Specific factual scrutiny - Industry-specific analysis - Specific cultural context ## Common forms **Verbal:** - Slurs / derogatory comments - Specific protected-class jokes - Insults related to status - Stereotypes - Repeated offensive comments **Visual:** - Offensive images / posters - Pornographic materials - Hate symbols - Email / text messages - Social media **Physical:** - Touching - Blocking movement - Assault - Specific physical harassment - Intimidation **Sexual harassment:** - Quid pro quo ("this for that") - Sexual conduct conditions of employment - Sexual advances - Sexual comments - Sexual assault - Specific to workplace **Other:** - Stalking - Online harassment - Group harassment - Specific intimidation - Retaliatory conduct ## Employer liability **Different standards by harasser type:** **Supervisor harassment:** - Vicarious liability - Faragher / Ellerth defense possible - Specific affirmative defense: 1. Employer exercised reasonable care 2. Plaintiff failed to use prevention/correction - Cannot use defense if tangible employment action **Co-worker harassment:** - Negligence standard - Employer liable if knew / should have known - Failed to take corrective action - Specific notice requirement **Third-party harassment:** - Customers, vendors, contractors - Employer liable if aware - Failed to act - Within control of employer ## Tangible employment actions **Specific consequences:** - Hiring / firing - Significant change in duties - Reassignment with significantly different responsibilities - Decision causing significant change in benefits - Specific economic impact **With tangible action** = strict employer liability **Without** = affirmative defense possible ## Reporting requirements **Plaintiff often must:** - Use employer's complaint procedure (when available) - Specific procedures - Sometimes required to maintain claim - Faragher / Ellerth element **When NOT required:** - No effective procedure - Procedure ineffective historically - Tangible action already occurred - Specific exceptions ## Damages **Title VII (similar to other discrimination claims):** - Lost wages (back pay + front pay) - Reinstatement - Compensatory damages (emotional distress) - Punitive damages (for private employers) - Attorney's fees + costs **Caps based on employer size:** - 15-100 employees: $50K total - 101-200: $100K - 201-500: $200K - 501+: $300K **State law often higher:** - ${s.name} may have: - Higher caps - No caps - Different remedies - Specific provisions ## Filing process **Federal:** - EEOC charge: 180/300 day deadline - Right-to-sue letter - 90 days to file lawsuit **State:** - ${s.name} agency - Specific deadlines - Specific procedures **Coordinated:** - Often dual filing - Specific provisions - Strategic considerations ## Documenting hostile work environment **Critical evidence:** **Contemporaneous notes:** - Date + summary of incidents - Witnesses present - Specific words used - Specific actions - Your response - Effect on you **Save communications:** - Emails - Texts - Voicemails (transcribed) - Social media posts / messages - Specific evidence **Photographs:** - Offensive materials displayed - Specific work environment - Specific incidents - Date-stamped if possible **Witnesses:** - Names + contact information - Specific events witnessed - Specific impacts observed **Reporting documentation:** - HR complaints (in writing) - Manager complaints - Specific responses - Investigation results - Specific outcomes ## Recent trends **EEOC priorities:** - Sexual harassment focus - Race-based harassment - Religious harassment - LGBT harassment - Online + remote workplace - AI-related discrimination **Notable case law:** - Bostock v. Clayton County (2020) — LGBT inclusion - Specific 2024 EEOC guidance - Increasing court awareness - Modern workplace recognition ## Common defenses **Employer defenses:** - Faragher / Ellerth defense (supervisor cases) - Adequate response - Specific corrective action - Lack of severe / pervasive conduct - Conduct not based on protected status - Failure to use complaint procedure - Statute of limitations ## Strategic considerations **For employees:** - Document everything contemporaneously - Use complaint procedure - Save all evidence - Witness contact info - File EEOC promptly - Consult attorney early - Don't quit if possible **For employers:** - Strong anti-harassment policy - Effective complaint procedure - Training programs - Quick response to complaints - Adequate investigation - Specific corrective action - Documentation ## What you should do If you face hostile work environment in South Dakota: document everything, use employer complaint procedure, file EEOC charge within 180-300 days. Many South Dakota employment attorneys offer free consultations + work on contingency. Don't quit before consulting counsel — preserve case. EEOC + state law often combine. --- *This guide is general information about federal + South Dakota law as of mid-2026 and is not legal advice. Hostile work environment cases are technical. Talk to a licensed South Dakota employment attorney about your specific situation.*