Senator Ernie R-Otten withdrew his anti-civil rights Senate Bill 67 under the interpretation that South Dakota law already allows discrimination against same-sex couples. Senator Otten's position hinges on how we read SDCL 20-13-1, the definitions of our state civil rights code:
(16) "Unfair or discriminatory practice," any act or attempted act which because of race, color, creed, religion, sex, ancestry, disability, or national origin accords 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, labor union membership, housing accommodations, property rights, education, public accommodations, and public services.
SDCL 20-13-1 mentions sex, but not sexual orientation. Does that mean South Dakota employers can refuse to hire homosexuals?
The U.S. Equal Employment Opportunity Commission says no:
The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) [EEOC, "Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status," downloaded 2014.01.31].
Executive Order 13087 from 1998 added "sexual orientation" to Executive Order 11478 from 1969 (Clinton and Nixon—liberals!) on equal employment opportunity in the feederal government. But EEOC's interpretation of "sex" includes "sexual orientiation," suggesting precedent under which a South Dakotan of something other than heterosexuality could press a workplace discrimination case against a boss who fires her/him for holding hands with someone other than whom God intended (sorry: I'm trying to think like Ernie Otten).
No private business may be compelled to employ a person based on sexual orientation. The Legislature finds that any federal recognition of any specific sexual orientation as a protected class does not apply in South Dakota and may not be enforced within the geographical boundaries of South Dakota.
Note that the wording of Senate Bill 128 does open the door for gay bosses to fire straight workers just for being straight. Do you really want to go there, Senator Jensen?
But the EEOC's interpretation of "sex" to include "sexual orientation" raises an important legal question: even if we want South Dakota to be America's homophobe mecca, do we need Senate Bill 128 to practice what the "Fear the Gay!" caucus of the South Dakota Legislature preaches? Does South Dakota civil rights law already exclude sexual orientation from protection, or does the EEOC interpretation of "sex" provide our GLBT neighbors the equal status they deserve?