EEO - Discrimination: New Mexico
Federal law and guidance on this subject should be reviewed together with this section.
Author: Lisa Mann, Jennifer Noya, Modrall Sperling
- The New Mexico Human Rights Act prohibits employers from discriminating against employees or applicants because of race, age, religion, color, national origin, ancestry, sex (including pregnancy, childbirth and related medical conditions), physical or mental handicap or serious medical condition. See Discrimination Under the New Mexico Human Rights Act.
- The New Mexico Human Rights Bureau operates in a similar fashion to the Equal Employment Opportunity Commission regarding state discrimination claims under the New Mexico Human Rights Act. See Administrative Process.
- The New Mexico Human Rights Act allows for actual damages such as lost wages, but does not allow for punitive damages. Injunctive relief and attorneys' fees are also available under the Act. See Remedies.
Discrimination Under the New Mexico Human Rights Act
The New Mexico Human Rights Act (NMHRA) prohibits employers from discriminating against employees or applicants because of race, age, religion, color, national origin, ancestry, sex (including pregnancy, childbirth and related medical conditions), sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition. +N.M. Stat. Ann. § 28-1-7.
The provisions of the New Mexico Human Rights Act with respect to race, color, age, religion, national origin, ancestry, sex, physical or mental disability apply to employers with four or more employees.
Employers with 15 or more employees may not discriminate because of sexual orientation or gender identity. Employers with 50 or more employees may not discriminate because of spousal affiliation. +N.M. Stat. Ann. § 28-1-7.
As mandated by the New Mexico Department of Workforce Solutions, Human Rights Bureau, every employer covered by the New Mexico Human Rights Act must post the New Mexico Discrimination Is Against the Law poster.
The New Mexico Human Rights Act prohibits employers from discriminating against employees or applicants because of race, age, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition.
Harassment based on any one of the above characteristics is a form of unlawful discrimination. +N.M. Stat. Ann. § 28-1-7.
Unlike federal antidiscrimination claims, individuals can be held personally liable under the New Mexico Human Rights Act whether named in the charge or not, as long as it is clear from the charge that the employee has a complaint against the individual. +N.M. Stat. Ann. § 28-1-2(A); See Sonntag v. Shaw, +130 N.M. 238, (2001).
Under the NMHRA, it is unlawful for an employer to:
- Refuse to hire, discharge, promote or demote, or otherwise discriminate with respect to an individual's compensation or terms and conditions of employment based on an individual's membership in a protected class;
- Willfully obstruct or prevent any person from complying with the New Mexico Human Rights Act, or to resist, prevent, impede, or interfere with the state human rights commission;
- Aid, abet, incite, compel, or coerce any unlawful discriminatory practice; and
- Threaten or retaliate against any individual who has made a complaint or assisted in an investigation, proceeding, or hearing under the state law.
Bona Fide Occupational Qualification
New Mexico case law recognizes that an employment practice that is otherwise discriminatory may be defended on the grounds that it is based on a bona fide occupational qualification. See Stock v. Granthan, +124 N.M. 564 (1998).
The bona fide occupational qualification defense may be available in cases of discrimination based on disability, age, religion, pregnancy and sex.
The New Mexico Human Rights Act designates sex as protected classes for all employers with four or more employees. Sex discrimination includes discrimination against women based on pregnancy, childbirth and related medical conditions.
Additionally, the New Mexico Human Rights Act designates spousal affiliation as a protected class for all employers with 50 or more employees.
Spousal affiliation refers to marital status. The New Mexico Human Rights Act prohibits rules restricting persons because of their marital status that do not apply equally to the opposite sex with the same status. +N.M. Code Regs. § 220.127.116.11(HH)(3).
Furthermore, women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons who are temporarily disabled for all employment-related purposes, including receipt of benefits under fringe benefit programs. +N.M. Code Regs. § 18.104.22.168(HH)(2).
An employee may prove discrimination based upon any of these protected categories by comparing wages earned by employees of separate, subsidiary companies in other states and/or cities. See Sonntag v. Shaw, +130 N.M. 328 (2001).
Sexual Orientation and Gender Identity Discrimination
Effective June 14, 2019, a New Mexico employer with four or more employees may not discriminate base on sexual orientation or gender identity. +2019 Bill Text NM S.B. 227. Previously, this provision applied to employers with 15 or more employees.
Under the NMHRA, sexual orientation means the individual's heterosexuality, homosexuality or bisexuality, whether or not that is the individual's actual sexual preference or is just perceived to be the individual's preference.
Gender identity means a person's self-perception, or perception by others, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics. +N.M. Stat. Ann. § 28-1-2.
The New Mexico Human Rights Act does not define the protected age class; however, the New Mexico Supreme Court has held that the age discrimination provisions of the New Mexico Human Rights Act apply to individuals who are at least 40 years of age. See Cates v. Regents of the N.M. Institute of Mining and Technology, +124 N.M. 633 (1998).
Age and disability discrimination claims must be the subject of timely-filed charges under the New Mexico Human Rights Act and cannot be characterized as common law torts unless they satisfy the elements of retaliatory discharge, intentional infliction of emotional distress, prima facie tort or other existing independent torts. See Gormley v. Coca-Cola Enterprises, +135 N.M. 128 (2003).
The New Mexico Human Rights Act does not prevent the mandatory retirement of an employee upon reaching the age of 65 years or older, if the employer is operating under a retirement plan that meets the requirements of the Employee Retirement Income Security Act of 1974. +N.M. Stat. Ann. § 28-1-9(F).
The New Mexico Human Rights Act prohibits any employer from refusing or failing to accommodate a person's physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or is an undue hardship. +N.M. Stat. Ann. § 28-1-7(J).
A serious medical condition means a serious health-related impairment other than a handicap, which substantially limits one or more of an individual's major life activities, and which is verifiable by medical diagnosis. +N.M. Code Regs. § 22.214.171.124(GG).
Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. +N.M. Stat. Ann. § 28-1-2(N).
An individual is also considered to be physically or mentally handicapped under the New Mexico Human Rights Act if he or she either:
- Has a record of a physical or mental handicap; and/or
- Is regarded as having a physical or mental handicap. +N.M. Stat. Ann. § 28-1-2(V)(1).
An individual has a record of such a handicap if he or she has a history or recorded classification of having a mental or physical impairment that substantially limits one or more major life activities. +N.M. Stat. Ann. § 28-1-2(V)(2).
An individual is regarded as having a handicap if he or she has:
- A physical or mental impairment that does not substantially limit major life activities, but is treated by a respondent as having such a limitation; or
- A physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairments; or
- None of the impairments described above, but is treated by the employer as having such an impairment.
The NMHRA requires employers to provide reasonable accommodations to employees with disabilities. +N.M. Stat. Ann. § 28-1-7(J) (2007).
Reasonable accommodations are defined as modifications or adaptations of the work environment or job responsibilities of a handicapped person as are necessary to enable him or her to perform the essential functions of the job in questions and which do not impose an undue hardship on the employer. +N.M. Code Regs. § 126.96.36.199(DD) (2007).
The regulations do not provide examples of what types of accommodations are deemed reasonable.
The New Mexico Human Rights Act provides certain exceptions for the employment practices of churches or other religious institutions.
The New Mexico Human Rights Act allows for such religious institutions to impose what would otherwise be discriminatory employment restrictions based upon sexual orientation and gender identity.
Furthermore, religious institutions may impose what would otherwise be discriminatory restrictions for membership to the institution, so long as the restrictions are not based upon race, color, national origin or ancestry. +N.M. Stat. Ann. § 28-1-9(B), (C).
Establishing a Claim of Discrimination
The New Mexico Supreme Court has adopted the federal courts' use of burden-shifting methodology under Title VII. See McDonnell Douglas Corp. v. Green, +411 U.S. 792 (1973); Gonzales v. N.M. Dep't of Health, +129 N.M. 586, 593-94 (2000).
Under the McDonnell Douglas framework, an employee bears the initial burden of demonstrating a prima facie case of discrimination, which then shifts the burden to the employer to provide a legitimate, nondiscriminatory reason for the adverse employment action.
The employee then has the opportunity to rebut the employer's proffered reason as pretextual or otherwise inadequate.
New Mexico law has adopted the federal motivating factor standard of proof which requires that the complaining party demonstrate that the complainant's membership in a protected class was a motivating factor for any employment practice, even though other factors also motivated the practice. See Nava v. City of Santa Fe, +2004 NMSC 039, 8, +136 N.M. 647, +103 P.3d 571.
The New Mexico Human Rights Commission and the Human Rights Bureau (HRB) of the Department of Workforce Solutions enforce the New Mexico Human Rights Act.
The HRB operates in a similar fashion to the Equal Employment Opportunity Commission regarding state discrimination claims under the New Mexico Human Rights Act.
Employees who wish to file a claim against their employer must file a charge of discrimination with either the HRB or the federal Equal Employment Opportunity Commission within 300 days of the latest act of discrimination. +N.M. Stat. Ann. § 28-1-10(A).
The HRB may investigate a charge, hold hearings and if it finds a violation of the Human Rights Act, it may award damages and attorneys' fees to an employee. +N.M. Stat. Ann. § 28-1-11(E).
The HRB may also terminate its investigation and issue the employee a notice of right to sue. In any event, either the employer or employee may appeal the HRB's decision by filing suit in district court within 90 days of the date the notice of the HRB's decision is served. +N.M. Stat. Ann. § 28-1-12(A).
Although employees may file their administrative charge with either the HRB or the EEOC, employees wishing to sue under the New Mexico Human Rights Act, must receive a notice of right to sue from the HRB before filing a lawsuit.
A right to sue notice from EEOC will not trigger the 90-day limitations period in which to file a lawsuit under the New Mexico Human Rights Act. See Mitchell-Carr v. McLendon, +127 N.M. 282 (1999).
The New Mexico Human Rights Act allows an employee who prevails on a claim under the Act to collect actual damages. +N.M. Stat. Ann. § 28-1-13(D).
Actual damages would include lost income and benefits that the employee would have earned absent the employer's violation of the New Mexico Human Rights Act.
Such damages could also include lost future income and payment for emotional distress or other similar damages designed to compensate the employee for injuries suffered as a result of the employer's violation of the New Mexico Human Rights Act.
An employee who prevails in a lawsuit under the New Mexico Human Rights Act may also recover reasonable attorneys' fees. Punitive damages are not available under the New Mexico Human Rights Act.
A court may also grant injunctive relief to remedy past violations and prevent future violations of the New Mexico Human Rights Act.
Under the Fair Pay for Women Act, an employer is prohibited from discriminating, within any establishment between employees based on sex by paying lower wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort and responsibility and that are performed under similar working conditions. Exceptions may only be made pursuant to a seniority system, a merit system, or a system that measures earnings by quantity or quality of production. An employer shall not reduce the wage of an employee to comply with this section. +N.M. Stat. Ann. § 28-23-3.
Additionally, the New Mexico Human Rights Act prohibits employers from making compensation decision on the basis of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition. +N.M. Stat. Ann. § 28-1-7.
Genetic Information Privacy Act
The Genetic Information Privacy Act prohibits employers from using genetic information in employment decisions. +N.M. Stat. Ann. § 24-21-4(D).
Genetic information is defined as information about the genetic makeup of a person or members of a person's family, including information resulting from genetic testing, genetic analysis, DNA composition, participation in genetic research or use of genetic services. +N.M. Stat. Ann. § 24-21-2.
An individual alleging a violation of this law may bring an action in state court. +N.M. Stat. Ann. § 24-21-6(B).
Lactation/Breastfeeding Protections and Accommodations
A mother may breastfeed her child in any location, public or private, where the mother is otherwise authorized to be present.
To foster the ability of a nursing mother who is an employee to use a breast pump in the workplace, an employer shall provide:
- A space for using the breast pump that is clean and private, near the employee's workspace, and not a bathroom; and
- Flexible break times.
An employer shall not be liable for:
- Storage or refrigeration of breast milk;
- Payment for a nursing mother's break time in addition to established employee breaks; or
- Payment of overtime while a nursing mother is using a breast pump.
Gender-Neutral Single-User Restrooms
Effective July 1, 2019, pursuant to the Gender-Free Restrooms Act, a single-user toilet facility that exists or is constructed on or after July 1, 2019 in a public accommodation must be:
- Made available to any person regardless of gender identity or sex;
- Designated for use by not more than one occupant at a time or for family or assisted use; and
- Identified with gender-neutral signage.
The law does not require construction of a new, single-user toilet facility if one does not exist in a public accommodation.
Gender identity means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth.
Gender-neutral signage means a sign that indicates a restroom without preference or distinction to a specific gender identity or sex.
A public accommodation is any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.
A single-user toilet facility means a single- occupancy restroom with an outer door that can be locked by the occupant.
Pursuant to the Lynn and Erin Compassionate Use Act, New Mexico permits the use of medical marijuana by qualified registered users with a debilitating medical condition. +N.M. Stat. § 26-2B-3(B).
The law does not protect registered users or their primary caregivers from criminal prosecution or civil penalties for possessing or using marijuana while at work. +N.M. Stat. § 26-2B-5(3).
Effective June 14, 2019, amendments to New Mexico's medical marijuana law, the Lynn and Erin Compassionate Use Act, expands the list of debilitating medical conditions and makes it unlawful for an employer to take certain actions against an applicant or employee based on conduct allowed under the act. +2019 Bill Text NM S.B. 406.
Specifically, the amendments provide that an employer may not take an adverse employment action against an applicant or employee based on conduct allowed under the law. However, an employer may take such action if failing to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations. Likewise, an employer may take adverse employment action against an employee for use of, or being impaired by, medical cannabis on the premises of the workplace or during the hours of employment. In addition, the protections do not extend to any employee who works in a safety-sensitive position. A safety-sensitive position is defined as a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.
Employee Privacy Act
New Mexico's Employee Privacy Act prohibits employers from discriminating against individuals because the individual is a smoker or nonsmoker if the individual complies with all laws regarding smoking on the employer's premises during working hours.
An employer may not require that an employee abstain from using tobacco during nonworking hours. Further, an employee claiming an unlawful action by an employer may bring a civil suit for damages. +N.M. Stat. Ann. §§ 50-11-1 et seq.
On December 19, 2013, the New Mexico Supreme Court legalized same-sex marriage. The Court held that denying same-sex couples the right to marry violated the Equal Protection Clause of the New Mexico Constitution. See Griego v. Oliver, +2013 N.M. LEXIS 414 (2013).
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
Prior to this ruling, New Mexico had neither prohibited nor permitted same-sex marriage, and a number of counties had been issuing marriage licenses to same-sex couples.
National Guard or State Militia Membership
It is unlawful to require an individual to disclose the results of an HIV test as a condition of hiring, promotion or continued employment, unless the absence of HIV is a bona fide occupational qualification of the job. If an employer or person asserts that a bona fide occupational qualification exists for disclosing an individual's HIV test results, the employer or person must prove that the HIV test is necessary to ascertain whether the individual is currently able to perform his or her job duties in a reasonable manner in a reasonable manner or whether the individual presents a significant risk of transmitting the HIV virus to other persons in the course of normal work activities; and there is no other reasonable accommodation short of requiring the test. +N.M. Stat. Ann. §28-10A-1 .
The City of Albuquerque's Human Rights Ordinance (Ordinance) generally tracks the HRA in terms of the kind of practices by employers that are considered unlawful discrimination, but defines employer to mean any person employing one or more employees, and thus covers a broader range of employers than the HRA. See ALBUQUERQUE, NM, REV. CODE OF ORDINANCES ch. 11, art. 3, § 11-3-3 (1994). Protected characteristics under the Ordinance include race, color, religion, sex, national origin or ancestry, age, or physical handicap. Human Rights Ordinance at § 11-3-7(A).
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.