2018 New Mexico Statutes
Chapter 28 - Human Rights
Article 1 - Human Rights
Section 28-1-7 - Unlawful discriminatory practice.

Universal Citation: NM Stat § 28-1-7 (2018)
28-1-7. Unlawful discriminatory practice.

It is an unlawful discriminatory practice for:

A. an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee's sexual orientation or gender identity;

B. a labor organization to exclude a person or to expel or otherwise discriminate against any of its members or against any employer or employee because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition;

C. any employer, labor organization or joint apprenticeship committee to refuse to admit or employ any person in any program established to provide an apprenticeship or other training or retraining because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation;

D. any person, employer, employment agency or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation, unless based on a bona fide occupational qualification;

E. an employment agency to refuse to list and properly classify for employment or refer a person for employment in a known available job, for which the person is otherwise qualified, because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification, or to comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on the basis of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification;

F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

G. any person to:

(1) refuse to sell, rent, assign, lease or sublease or offer for sale, rental, lease, assignment or sublease any housing accommodation or real property to any person or to refuse to negotiate for the sale, rental, lease, assignment or sublease of any housing accommodation or real property to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

(2) discriminate against any person in the terms, conditions or privileges of the sale, rental, assignment, lease or sublease of any housing accommodation or real property or in the provision of facilities or services in connection therewith because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; or

(3) print, circulate, display or mail or cause to be printed, circulated, displayed or mailed any statement, advertisement, publication or sign or use any form of application for the purchase, rental, lease, assignment or sublease of any housing accommodation or real property or to make any record or inquiry regarding the prospective purchase, rental, lease, assignment or sublease of any housing accommodation or real property that expresses any preference, limitation or discrimination as to race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

H. any person to whom application is made either for financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation or real property or for any type of consumer credit, including financial assistance for the acquisition of any consumer good as defined by Section 55-9-102 NMSA 1978, to:

(1) consider the race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap of any individual in the granting, withholding, extending, modifying or renewing or in the fixing of the rates, terms, conditions or provisions of any financial assistance or in the extension of services in connection with the request for financial assistance; or

(2) use any form of application for financial assistance or to make any record or inquiry in connection with applications for financial assistance that expresses, directly or indirectly, any limitation, specification or discrimination as to race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap;

I. any person or employer to:

(1) aid, abet, incite, compel or coerce the doing of any unlawful discriminatory practice or to attempt to do so;

(2) engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act; or

(3) willfully obstruct or prevent any person from complying with the provisions of the Human Rights Act or to resist, prevent, impede or interfere with the commission or any of its members, staff or representatives in the performance of their duties under the Human Rights Act; or

J. any employer to refuse or fail to accommodate a person's physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or an undue hardship.

History: 1953 Comp., § 4-33-7, enacted by Laws 1969, ch. 196, § 7; 1973, ch. 58, § 1; 1973, ch. 155, § 2; 1975, ch. 62, § 1; 1983, ch. 241, § 2; 1987, ch. 76, § 2; 1995, ch. 125, § 1; 2001, ch. 347, § 1; 2003, ch. 383, § 2; 2004, ch. 115, § 1.

ANNOTATIONS

The 2004 amendment, effective July 1, 2004, amended Subsection A to delete "sexual orientation, gender identity" and to add at the end of the Subsection "or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee's sexual orientation or gender identity;".

The 2003 amendment, effective July 1, 2003, deleted "the" following "therewith because of" in Paragraph G(2); substituted "55-9-102" for "55-9-109" following "defined by Section" in Subsection H; substituted "a person's" for "to an individual's" following "fail to accommodate" in Subsection J; inserted "sexual orientation, gender identity" throughout the section; and substituted "a person" for "an individual", "person" for "individual", and "a person's" for "an individual's" throughout the section.

The 2001 amendment, effective June 15, 2001, in Subsection A, inserted "or other statutory prohibition" following "bona fide occupational qualification", deleted "marital status" preceding "physical or mental handicap", and inserted "or, if the employer has fifty or more employees, spousal affiliation" following "serious medical condition"; in Subsections B through H, substituted "spousal affiliation" for "marital status"; and in Subsection E, inserted "or serious medical condition" following the first instance of "mental handicap".

The 1995 amendment, effective June 16, 1995, inserted "serious" preceding "medical condition" throughout the section.

I. GENERAL CONSIDERATION.

"Otherwise qualified". — An employee is required to demonstrate that he or she is "otherwise qualified" to show a public policy violation based on Section 28-1-7A NMSA 1978. Chavez v. Qwest, Inc., 483 F.Supp.2d 1103 (D.N.M. 2007).

ERISA actions. — Where a complaint asserts a mixed motive of both discrimination because of age and discrimination because of a benefits-defeating motive, ERISA does not completely preempt a state age-discrimination claim. Ruby v. Sandia, 699 F.Supp.2d 1247 (D.N.M. 2010).

Human Rights Act inapplicable on federal enclave. — Congress has exclusive authority over federal enclaves, and therefore plaintiffs' claims were barred by the federal enclave doctrine, where plaintiffs, employees of Sandia corporation (Sandia labs) located on Kirtland air force base, brought state-law employment discrimination claims against Sandia labs, a federally funded research and development contractor operating under contract for the department of energy. Kennicott v. Sandia Corp., 314 F.Supp.3d 1142 (D.N.M. 2018)

Constitutionality of section. — This section defines what is an unlawful discriminatory practice with sufficient particularity to effectuate the legislative intent of the Human Rights Act, and therefore is not repugnant to the New Mexico constitution. Keller v. City of Albuquerque, 1973-NMSC-048, 85 N.M. 134, 509 P.2d 1329, overruled on other grounds, Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318.

Burden of proving exhaustion of administrative remedies. — Plaintiffs, who have alleged in their complaint that they have exhausted their administrative remedies, have the burden of proving exhaustion of their administrative remedies in order for their case to proceed at the district court level. Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109.

Failure to exhaust administrative remedies deprives the court of subject matter jurisdiction. — Where plaintiffs alleged that they were dismissed from their jobs for not participating in defendant's religious activities; plaintiffs filed complaints with the equal employment opportunity commission and cross filed the complaints with the human rights division; plaintiffs did not receive a letter of non-determination from the division; and after receiving right-to-sue letters from the commission, plaintiffs filed suit against defendant for wrongful termination and discrimination, plaintiffs failed to exhaust their remedies under the Human Rights Act, which deprived the district court of subject matter jurisdiction, requiring the dismissal of the complaint with prejudice. Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109.

Prohibiting commercial photography business from discriminating based on sexual orientation did not violate freedom of expression. — Where plaintiff offered wedding photography services to the general public; plaintiff's business was a public accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.; plaintiff refused to photograph a same-sex commitment ceremony between defendant and defendant's partner on religious grounds; and plaintiff claimed that the act compelled plaintiff to express a positive image and message about same-sex commitment ceremonies contrary to plaintiff's beliefs, the act did not violate plaintiff's first amendment rights to refrain from speaking because the act only requires that businesses that operate as a public accommodation, cannot discriminate against potential clients based on their sexual orientation, it does not compel plaintiff to either speak a government-mandated message or to publish the speech of another person. Elane Photography, LLC v. Willock, 2013-NMSC-040, aff'g 2012-NMCA-086, 284 P.3d 428.

Where plaintiff violated the Human Rights Act, Section 28-1-1 NMSA 1978 et seq., by refusing on religious and moral grounds to photograph defendant's commitment ceremony with defendant's same-sex partner; and plaintiff claimed that the act violated plaintiff's freedom of expression because photography is an artistic expression entitled to first amendment protection, the act did not violate plaintiff's freedom of expression because the act regulated plaintiff's conduct in its commercial business, not its speech or right to express its views about same-sex relationships. Elane Photography, LLC v. Willock, 2012-NMCA-086, 284 P.3d 428, cert. granted, 2012-NMCERT-008, aff'd, 2013-NMSC-040.

Prohibiting commercial photography business from discriminating based on sexual orientation did not violate freedom of religion. — Where plaintiff offered wedding photography services to the general public; plaintiff's business was a public accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.; plaintiff refused to photograph a same-sex commitment ceremony between defendant and defendant's partner on religious grounds; and plaintiff claimed that the act compelled plaintiff to express a positive image and message about same-sex commitment ceremonies contrary to plaintiff's beliefs, the act did not violate plaintiff's first amendment free exercise rights because the act is a neutral law of general applicability that ensures that businesses that choose to operate as a public accommodation do not discriminate against protected classes of people, it does not target only religiously motivated discrimination. Elane Photography, LLC v. Willock, 2013-NMSC-040, aff'g 2012-NMCA-086, 284 P.3d 428.

Where plaintiff violated the Human Rights Act, Section 28-1-1 NMSA 1978 et seq., by refusing on religious and moral grounds to photograph defendant's commitment ceremony with defendant's same-sex partner; and plaintiff claimed that the act violated plaintiff's freedom of religion because the act forced plaintiff to photograph same-sex marriages in violation of plaintiff's owner's religious belief that marriage is the union of one man and one woman, the act did not violate plaintiff's freedom of religion because the act is directed at and applies generally to all citizens transacting business through public accommodations that deal with the public at large, any burden on religion or religious beliefs was incidental and uniformly applied to all citizens, and a rational basis existed to support the governmental interest in protecting specific classes of citizens from discrimination in public accommodations. Elane Photography, LLC v. Willock, 2012-NMCA-086, 284 P.3d 428, cert. granted, 2012-NMCERT-008, aff'd, 2013-NMSC-040.

Burden of proof. — To avoid an adverse judgment as a matter of law, the plaintiff ordinarily need not introduce additional evidence of discrimination beyond evidence establishing a prima facie case and evidence of the falsity of the proffered reason for the employment action. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003, 130 N.M. 25, 16 P.3d 1084.

Protections in Human Rights Act apply equally to all plaintiffs, regardless of minority status. — The New Mexico Human Rights Act (NMHRA) prohibits unlawful discrimination based on the traits declared by the legislature to be worthy of protection. Therefore, under the plain language of the NMHRA, its protections and requirements apply equally to all plaintiffs, regardless of their minority status. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Prima facie case of employment discrimination. — To establish a prima facie case of employment discrimination, the plaintiff must show that the plaintiff is a member of a protected class, the plaintiff was qualified to continue in the employment position, plaintiff's employment was terminated, and plaintiff was dismissed purportedly for performance nearly identical to the performance of one outside the protected class who was nonetheless retained. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Where plaintiff claimed that she was subjected to employment discrimination because she is not Hispanic, and where plaintiff proffered evidence purporting to show that she was treated less favorably than her Hispanic coworkers in a variety of ways, some of which were unrelated to her performance or termination, such as the scheduling and assignment of bus routes, compensation for pre- and post-trip inspection time, maintaining a clean bus, and enforcement of post-accident testing and suspension policies, plaintiff's proffered evidence was insufficient to establish a prima facie case of discriminatory termination, and the district court did not err in granting defendant's motion for summary judgment, because plaintiff failed to come forward with evidence that one or more Hispanic employees' performance was nearly identical to plaintiff's performance as a whole; the evidence was therefore insufficient to rule out the most common nondiscriminatory reasons for the termination of her employment. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Burden of proof on claims of unlawful discrimination. — For claims of unlawful discrimination, the plaintiff bears the initial burden of demonstrating a prima facie case of discrimination by showing that he or she is a member of the protected group, that he or she was qualified to continue in his or her position, that his or her employment was terminated, and that his or her position was filled by someone not a member of the protected class, or that he or she was dismissed purportedly for misconduct nearly identical to that engaged in by one outside of the protected class who was nonetheless retained. A plaintiff is also afforded the opportunity to rebut the employer's proffered reason as pretextual. Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-034, cert. granted.

Rebutting presumption of liability. — Where no tangible employment action has been taken against the employee, the employer may rebut the presumption of liability by proving elements of an affirmative defense. Ocana v. Am. Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Failure to state claim for common law retaliatory discharge. — Where plaintiffs, who brought a claim for wrongful termination based on religious discrimination, alleged that defendant discriminated against plaintiffs because of plaintiffs' religion, created a hostile work environment for plaintiffs and retaliated against plaintiffs by terminating plaintiffs in violation of the Human Rights Act, specifically Section 28-1-7 (A) NMSA 1978, plaintiffs did not plead a claim for the common law tort of retaliatory discharge nor did they give defendant adequate notice of the common law tort claim separate from the wrongful termination charge filed under the Human Rights Act. Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109.

Summary judgment appropriate. — Because plaintiff had acknowledged that she could not reasonably be accommodated in her former job and reassignment was not required under the Human Rights Act, summary judgment on a Human Rights Act claim was appropriate. Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir. 2004).

Guidance provided by interpretation of federal law. — The evidentiary methodology adopted by the United States Supreme Court in interpreting the federal Civil Rights Act of 1964 provides guidance for proving a violation of the New Mexico Human Rights Act. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433.

Reassignment. — Although the Human Rights Act was intended to eliminate unlawful discriminatory practice, nothing in that broad purpose requires that reasonable accommodation be read to include reassignment. Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir. 2004).

"Reasonable accommodation" defined. — Although the statute does not define what constitutes a "reasonable accommodation", the New Mexico Human Rights Commission regulations, 9.1.1.7 NMAC, define reasonable accommodation. Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir. 2004).

II. SEXUAL HARASSMENT AND DISCRIMINATION.

Refusal by commercial photography business to photograph a same-sex commitment ceremony constituted discrimination. — Where plaintiff offered wedding photography services to the general public; plaintiff's business was a public accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.; and plaintiff refused to photograph a same-sex commitment ceremony between defendant and defendant's partner on religious grounds, plaintiff violated the act because plaintiff discriminated against defendant on the basis of plaintiff's sexual orientation. Elane Photography, LLC v. Willock, 2013-NMSC-040, aff'g 2012-NMCA-086, 284 P.3d 428.

Where plaintiff, which was a commercial photography business, refused to photograph defendant's commitment ceremony with defendant's same-sex partner based on plaintiff's owners' religious and moral beliefs which prohibited plaintiff from photographing images that convey a message that marriage can be defined other than as the union of one man and one woman; and plaintiff constituted a public accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq., plaintiff violated the act by discriminating against defendant based on defendant's sexual orientation. Elane Photography, LLC v. Willock, 2012-NMCA-086, 284 P.3d 428, cert. granted, 2012-NMCERT-008, aff'd, 2013-NMSC-040.

Hostile work environment sexual harassment. — A plaintiff's claim of hostile work environment sexual harassment was supported by substantial evidence where she proved the following: an attorney, who worked with plaintiff as a paralegal, regularly made sexual innuendoes and told dirty jokes that were demeaning to women, engaged in sexual discussions and flirted with female employees, inappropriately touched female employees, commented about employees' sexual preferences and tolerated similar conduct by other office employees and the attorney became more aggressive when plaintiff reported the occurrences to her employer, followed plaintiff and yelled at her, disciplined plaintiff for pretextual reasons and berated and belittled her publicly. Littell v. Allstate Ins. Co., 2008-NMCA-012, 143 N.M. 506, 177 P.3d 1080.

Employer liability will be presumed where there is actionable sexual harassment and the harassing employee has supervisory authority over the victimized employee. Ocana v. American Furn. Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Proof of sex discrimination. — In plaintiff's action alleging that her employer discriminated against her on the basis of her sex, the trial court properly allowed her to compare her wages with those of males employed as subsidiary managers by the company in other cities. Sonntag v. Shaw, 2001-NMSC-015, 130 N.M. 238, 22 P.3d 1188.

Hostile work environment claim was established by aggregation of incidents reflecting severity and pervasiveness of harassment almost daily for nineteen months. Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571.

Standard applicable to hostile work environment claims. — To state a claim for a hostile work environment, the alleged conduct must be so severe and pervasive that the workplace is transformed into a hostile and abusive environment for the employee. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.

Where plaintiff, a resident physician at the university of New Mexico school of medicine, was dismissed from the residency program and brought suit against the board of regents of the university of New Mexico claiming sex discrimination, and where plaintiff proffered a jury instruction stating that to prove her hostile work environment, she was required to establish that defendant's conduct, after it learned of plaintiff's allegations of rape, was based on her sex and was "severe or pervasive," the district court's denial of plaintiff's instruction was proper, and the court's instruction, stating that to find a hostile work environment, plaintiff had to establish that defendant's conduct was based on plaintiff's sex and was "severe and pervasive," accurately stated the law. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.

Claim not barred by exclusivity provision of Worker's Compensation Act. — The plaintiff's claim of sex discrimination under the New Mexico Human Rights Act was not barred by the exclusivity provision of the Worker's Compensation Act, Section 52-1-6 NMSA 1978 et seq., even though her claim for worker's compensation and for violation of the NMHRA stemmed from the same set of facts. Sabella v. Manor Care, Inc., 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901.

Claim under the Human Rights Act was not barred by the Personnel Act. — The protections against discrimination and retaliation contained in the Human Rights Act apply to probationary employees of the state who have been discharged pursuant to the Personnel Act, Section 10-9-1 NMSA 1978 et seq. Rodriguez v. N.M. Dep't of Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047.

Where the employee was hired as a probationary employee of the Department of Workforce Solutions; while the employee was a probationary employee, the employee was given notice of dismissal from the employee's position pursuant to the Personnel Act, Section 10-9-1 NMSA 1978 et seq., which permitted the department to terminate the employee without cause; as a probationary employee, the employee had no property interest in continuing employment; and the employee filed a claim under the Human Rights Act alleging discrimination and retaliation based on sex and age, the employee had a right to pursue the claims under the Human Rights Act. Rodriguez v. N.M. Dep't of Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047.

Human Rights Act prohibition against discrimination on the basis of spousal affiliation or sexual orientation. — An owner of a mobile home park was not "using" property for an immoral purpose when renting to cohabiting couples, or to tenants engaged in drug trafficking in the absence of a showing of knowledge of the drug trafficking. Maloof v. Prieskorn, 2004-NMCA-126, 136 N.M. 516, 101 P.3d 327, cert. denied, 2004-NMCERT-011, 136 N.M. 656, 103 P.3d 580.

City of Albuquerque ordinance which prohibits public nudity does not violate the New Mexico Human Rights Act which in general prohibits an establishment that offers services to the public from discriminating on the basis of sex. City of Albuquerque v. Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, cert. denied, 2004-NMCERT-006, 135 N.M. 789, 93 P.3d 1292.

Summary judgment appropriate. — Where superior told plaintiff over a two-month period that he found plaintiff attractive and asked if plaintiff was interested in a relationship, but did not pursue the matter after he was rebuffed by plaintiff and reduced his contact with plaintiff; superior never made any comment connecting a promised raise to anything other than plaintiff's job performance; and plaintiff offered no evidence that her work performance was affected, that she felt compelled to resign, that her superior made any suggestion that her response to his advances would have an impact on her compensation or other aspect of her employment, or that plaintiff suffered any adverse employment action after she reported what she believed to be harassment to her superior, plaintiff failed to show quid pro quo sexual harassment, hostile work environment sexual harassment, constructive discharge or retaliation. Ulibarri v. State, 2006-NMSC-009, 139 N.M. 193, 131 P.3d 43.

III. AGE, DISABILITY AND RACE DISCRIMINATION.

Age and disability claims must be pursued under the New Mexico Human Rights Act and do not lie in common law tort. Employees may not pursue age and discrimination claims outside the Act that do not contain allegations sufficient to meet the elements of retaliatory discharge, intentional infliction of emotional distress, prima facie tort, or other existing independent torts. Gormley v. Coca-Coca Enters., 2004-NMCA-021, 135 N.M. 128, 85 P.3d 252, aff'd, 2005-NMSC-003, 137 N.M. 192, 109 P.3d 280.

Disability based on serious medical condition. — Plaintiff established a prima facie case of disability for purposes of an employment discrimination claim based on plaintiff's breast cancer and on the effects of plaintiff's cancer medication which substantially impaired plaintiff's normal sex life. Keller v. Board of Educ. of City of Albuquerque, 182 F. Supp. 2d 1148 (D.N.M. 2001).

Human Rights Act prohibits employers from refusing to reasonably accommodate individual's disability. Albert v. Smith's Food & Drug Centers, Inc., 356 F.3d 1242 (10th Cir. 2004).

New Mexico created state remedy for age discrimination through the New Mexico Human Rights Act that affords victims back wages and other monetary relief. Gill v. Pub. Employees Ret. Bd., 2004-NMSC-016, 135 N.M. 472, 90 P.3d 491.

Bona fide occupational qualification. — Termination of nanny who, due to illness, was unable to perform job was not a wrongful discharge under this section; the ability to attend work regularly is a bona fide occupational qualification within the meaning of Subsection A. Stock v. Grantham, 1998-NMCA-081, 125 N.M. 564, 964 P.2d 125, cert. denied, 125 N.M. 322, 961 P.2d 167.

Race discrimination not shown. — Shopping center manager did not discriminate against an East Indian store owner by refusing to renew the owner's lease of a space in the shopping center, where the decision not to renew the lease was purely a business judgment based on efforts to improve the center's "tenant mix". Goradia v. Hahn Co., 1991-NMSC-040, 111 N.M. 779, 810 P.2d 798.

Protections in Human Rights Act apply equally to all plaintiffs, regardless of minority status. — The New Mexico Human Rights Act (NMHRA) prohibits unlawful discrimination based on the traits declared by the legislature to be worthy of protection. Therefore, under the plain language of the NMHRA, its protections and requirements apply equally to all plaintiffs, regardless of their minority status. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Prima facie case of employment discrimination. — To establish a prima facie case of employment discrimination, the plaintiff must show that the plaintiff is a member of a protected class, the plaintiff was qualified to continue in the employment position, plaintiff's employment was terminated, and plaintiff was dismissed purportedly for performance nearly identical to the performance of one outside the protected class who was nonetheless retained. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Where plaintiff claimed that she was subjected to employment discrimination because she is not Hispanic, and where plaintiff proffered evidence purporting to show that she was treated less favorably than her Hispanic coworkers in a variety of ways, some of which were unrelated to her performance or termination, such as the scheduling and assignment of bus routes, compensation for pre- and post-trip inspection time, maintaining a clean bus, and enforcement of post-accident testing and suspension policies, plaintiff's proffered evidence was insufficient to establish a prima facie case of discriminatory termination, and the district court did not err in granting defendant's motion for summary judgment, because plaintiff failed to come forward with evidence that one or more Hispanic employees' performance was nearly identical to plaintiff's performance as a whole; the evidence was therefore insufficient to rule out the most common nondiscriminatory reasons for the termination of her employment. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Classifications such as Caucasian, white, and non-Hispanic are protected. — Where plaintiff, a Caucasian and of German descent, claimed that she was subject to discrimination based on her status as a non-Hispanic, the district court erred in granting defendant's motion for summary judgment on the grounds that the school district that refused to renew plaintiff's employment contract was not aware of plaintiff's asserted national origin, and therefore plaintiff's national origin could not, as a matter of law, have been a motivating factor in the decision to terminate her employment. A national origin discrimination claim based on the ethnic distinction between Hispanics and non-Hispanics is actionable under the New Mexico Human Rights Act. Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-034, cert. granted.

Reverse discrimination claims. — Reverse discrimination claims are analyzed like any other racial discrimination claim, and where plaintiff, who identified her protected group as white or non-Hispanic, presented evidence concerning her training and experience, as well as evidence that other school bus drivers, who did not belong to the protected class, had similar performance issues and were not terminated, plaintiff satisfied the prima facie case requirement to show that the circumstances of her termination give rise to an inference of discrimination, and the burden shifts to the school district to provide a legitimate purpose for plaintiff's termination. Plaintiff's evidence was also sufficient to raise a question as to pretext, and therefore plaintiff put forward sufficient evidence to create genuine issues of material fact with respect to her discrimination claim against defendant. The district court erred in granting summary judgment dismissing plaintiff's claim. Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-034, cert. granted.

Age and race discrimination shown. — Fifty-nine year-old Navajo Indian made out a case that he was terminated because of his age and race, where he identified age and race-based animus, and demonstrated that he was treated differently than similarly situated young, non-Native Americans, to a degree sufficient to support a judgment and award of damages. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433.

Age discrimination not shown. — Employee's charge of age discrimination was not established where the evidence showed that the employer did not breach its reduction-in-force policy, plaintiff was not treated less favorably than younger employees, and the employer had a legitimate nondiscriminatory reason not to retain the employee. Cates v. Regents of N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65.

"Medical condition" does not include a temporary injury with minimal residual effects. Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, 131 N.M. 607, 41 P.3d 333.

Court may not impute knowledge of certain medical conditions. — Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the employer cannot be held to have imputed knowledge of a medical condition. Trujillo v. N. Rio Arriba Elec. Coop., 2002-NMSC-004, 131 N.M. 607, 41 P.3d 333.

Totally disabled employee. — By admitting in his worker's compensation claim that he was totally disabled, an employee also admitted that he was not "otherwise qualified", per Subsection A, and, thus, was barred as matter of law from recovery under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq. Kitchell v. Pub. Serv. Co., 1998-NMSC-051, 126 N.M. 525, 972 P.2d 344.

IV. RETALIATION.

Retaliation provisions. — The plain language of the New Mexico Human Rights Act retaliation provision in Section 28-1-7I(2) NMSA 1978 is broad enough to provide protection to a defense attorney participating in a mediation. Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008)

Acts of retaliation. — Prohibited acts of "threats, reprisal or discrimination" are considered together under the general label of unlawful retaliation. Juneau v. Intel Corp., 2006-NMSC-002, 139 N.M. 12, 127 P.3d 548.

Prima facie case of retaliation. — To present a prima facie case of retaliation, opposition to a discriminatory practice must be shown and regardless of how a complaint of discrimination is made to the employer, the employee's communication to the employer must sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner and at the very least, if the statement does not mention a specific act of discrimination, the employer must be able to discern from the context of the statement that the employee opposes an allegedly unlawful employment practice. Ocana v. American Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Burden of proof. — In action for retaliation under the New Mexico Human Rights Act, the plaintiff has the burden of establishing that the defendant's actions were taken with the intent to retaliate against the plaintiff. Gioia v. Pinkerton's, Inc., 194 F. Supp. 2d 1207 (D.N.M. 2002).

Plaintiff who is not at-will employee may not pursue action for tort of retaliatory discharge under the policy exception to the at-will doctrine when the plaintiff has an alternative remedial grievance procedure available under a collective bargaining agreement. Silva v. American Fed'n. of State, County & Mun. Employees, 231 F.3d 691 (10th Cir. 2001).

Continuing violation doctrine applies to retaliation claim. — The continuing violation doctrine applies to retaliation claims. If one act contributing to a retaliation claim based on a series of actions and not a single, discrete act occurred within the statutory period for filing complaints, all acts creating the retaliation claim may be considered, including facts and evidence of facts that occurred prior to the one-hundred-eighty-day statute of limitations cut-off for filing complaints. Charles v. NMSU Regents, 2011-NMCA-057, 150 N.M. 17, 256 P.3d 29, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Where plaintiff complained several times about the conduct of a co-worker and after each complaint, the co-worker and plaintiff's supervisors retaliated with harassment, threatening behavior, discrimination and reprisals, plaintiff's claim of retaliation was based on a cumulative series of acts, not a discrete discriminatory act, the continuing violation doctrine applied, and the court could consider all of the conduct that occurred during plaintiff's employment, including conduct that occurred more than 180 days prior to the date plaintiff filed a complaint. Charles v. NMSU Regents, 2011-NMCA-057, 150 N.M. 17, 256 P.3d 29, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Sufficient evidence of constructive discharge. — Where plaintiff testified that during plaintiff's four years of employment with defendant, plaintiff's co-worker yelled at plaintiff, told plaintiff to "shut up", accused plaintiff of not doing anything, called plaintiff insulting names, subjected plaintiff to intimidating conduct by yelling at plaintiff, slammed drawers and cabinets, refused to give plaintiff receipts for purchases made using a university card that was issued to plaintiff, made fun of plaintiff, and told plaintiff to hold plaintiff's blouse closed when plaintiff bent down or the co-worker would kick plaintiff; some of the co-worker's conduct occurred in front of students; and plaintiff's supervisor yelled at plaintiff and criticized plaintiff in front of students, threw a cigarette butt at plaintiff, unfairly criticized plaintiff's work performance, accused plaintiff of being late to work, and decreased plaintiff's performance rating with respect to working relations, plaintiff's evidence was sufficient to support the jury's findings that plaintiff was constructively discharged. Charles v. NMSU Regents, 2011-NMCA-057, 150 N.M. 17, 256 P.3d 29, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Retaliatory discharge shown. — In an action by an employee against an employer alleging gender discrimination and retaliatory discharge, since the supervisor's own testimony constituted an admission that the employee's complaint of gender discrimination caused him to make the determination to terminate her, the employee was entitled to judgment as a matter of law. Brillhart v. Philips Elec. N. Am. Corp., 938 F. Supp. 742 (D.N.M. 1996), rev'd, 179 F.3d 1271 (10th Cir. 1999).

Retaliatory actions shown. — Jury reasonably concluded that retaliation was the motive behind the unfair criticism and isolation to which the employee was subjected after she filed a discrimination claim, as well as the employer's failure to give her the same consideration for a particular position as other employees. Gonzales v. N.M. Dep't of Health, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550.

Prospective employee may be required to enter race on application for security reasons despite provisions of Section 59-4-4C, 1953 Comp. (similar to Subsection D of this section). 1963-64 Op. Att'y Gen. No. 63-163.

Law reviews. — For note and comment, "The Irrational Legacy of Romer v. Evans: A Decade of Judicial Review Reveals the Need for Heightened Scrutiny of Legislation That Denies Equal Protection to Members of the Gay Community," see 36 N.M.L. Rev. 565 (2006).

For comment, "Public Accommodations in New Mexico: The Right to Refuse Service for Reasons Other Than Race or Religion," see 10 Nat. Resources J. 635 (1970).

For article, "Age Discrimination in Employment: A Comparison of the Federal and State Laws and Remedies in New Mexico," see 7 N.M.L. Rev. 51 (1976-77).

For note, "Human Rights Commission v. Board of Regents: Should a University be Considered a Public Accommodation Under the New Mexico Human Rights Act"? see 12 N.M.L. Rev. 541 (1982).

For article, "Defending the Abusively Discharged Employee: In Search of a Judicial Solution," see 12 N.M.L. Rev. 711 (1982).

For article, "Selecting an Analogous State Limitations Statute in Reconstruction Civil Rights Claims: The Tenth Circuit's Resolution," see 15 N.M.L. Rev. 11 (1985).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15 Am. Jur. 2d Civil Rights §§ 28 to 34, 41 to 60, 98 to 175, 193 to 206, 226 to 242, 249 to 256.

Tenants or buyers: race or religious belief as permissible consideration in choosing tenants or buyers of real estate, 14 A.L.R.2d 153.

Discharge from private employment on ground of political views or conduct, 51 A.L.R.2d 742, 29 A.L.R.4th 287, 38 A.L.R.5th 39.

Businesses or establishments falling within state civil rights statute provisions prohibiting discrimination, 87 A.L.R.2d 120.

Blockbusting: validity and construction of anti-blockbusting regulations designed to prevent brokers from inducing sales of realty because of actual or rumored entry of racial group in neighborhood, 34 A.L.R.3d 1432.

Exclusion of or discrimination against physician or surgeon by hospital, 37 A.L.R.3d 645.

Aliens: constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Discrimination in provision of municipal services or facilities as civil rights violation, 51 A.L.R.3d 950.

Trailer park as place of public accommodation within meaning of state civil rights statutes, 70 A.L.R.3d 1142.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

State laws prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages, 89 A.L.R.3d 7.

Construction and effect of state legislation forbidding job discrimination because of physical handicap, 90 A.L.R.3d 383.

Union security arrangements in state public employment, 95 A.L.R.3d 1102.

Application of state law to age discrimination in employment, 96 A.L.R.3d 195.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.

Identification of jobseeker by race, religion, national origin, sex, or age, in "situation wanted" employment advertising as violation of state civil rights laws, 99 A.L.R.3d 154.

On-the-job sexual harassment as violation of state civil rights law, 18 A.L.R.4th 328.

Construction and effect of state legislation forbidding discrimination in housing on account of physical handicap, 28 A.L.R.4th 685.

What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status, 33 A.L.R.4th 964.

What constitutes employment discrimination on basis of "marital status," for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Discipline or discharge for sexual conduct as violative of state fair employment laws, 47 A.L.R.4th 863.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

State civil rights legislation prohibiting sex discrimination in housing, 81 A.L.R.4th 205.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 A.L.R.4th 26.

Liability for discharge of employee from private employment on ground of political views or conduct, 38 A.L.R.5th 39.

Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

When is supervisor's or coemployee's hostile environment sexual harassment imputable to employer under state law, 94 A.L.R.5th 1.

Discrimination against pregnant employee as violation of state fair employment laws, 99 A.L.R.5th 1.

What constitutes substantial limitation on major life activity of working for purposes of state civil rights acts, 102 A.L.R.5th 1.

Necessity of, and what constitutes, employer's reasonable accommodation of employee's religious preference under state law, 107 A.L.R.5th 623, § 7.

Refusal to hire, or dismissal from employment, on account of plaintiff's sexual lifestyle or sexual preference as violation of federal constitution or federal civil rights statutes, 42 A.L.R. Fed. 189.

Sex discrimination in law enforcement and corrections employment, 53 A.L.R. Fed. 31.

Actions, under 42 USCS § 1983, for violations of federal statutes pertaining to rights of handicapped persons, 63 A.L.R. Fed. 215.

Age as bona fide occupational qualification "reasonably necessary" for normal conduct of business under § 4(f)(1) of Age Discrimination in Employment Act (29 USCS § 623(f)(1)), 63 A.L.R. Fed. 610.

Admissibility, in action under Title VII of the Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), of evidence of discriminatory practices predating the Act, 63 A.L.R. Fed. 891.

Liability under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.) of employer, as successor employer, for discriminatory employment practices of predecessor, 67 A.L.R. Fed. 806.

Disparate impact test for sex discrimination in employment under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.), 68 A.L.R. Fed. 19.

When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS § 2000e et seq.), 78 A.L.R. Fed. 252.

Reinstatement as remedy for discriminatory discharge or demotion under Age Discrimination in Employment Act (29 USCS § 621 et seq.), 78 A.L.R. Fed. 575.

Actions under Age Discrimination in Employment Act (29 USCS §§ 621-634) challenging hiring or retirement practices in law enforcement employment, 79 A.L.R. Fed. 373.

Who is "qualified" handicapped person protected from employment discrimination under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.) and regulations promulgated thereunder, 80 A.L.R. Fed. 830.

Effect of mixed or dual motives in actions under Title VII (equal employment opportunities subchapter) of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 83 A.L.R. Fed. 268.

Actionability, under federal and state antidiscrimination legislation, of foreign employer's discriminating in favor of foreign workers in hiring and other employment matters, 84 A.L.R. Fed. 114.

Nature and burden of proof in Title VII action alleging favoritism in promotion or job assignment due to sexual or romantic relationship between supervisor and another, 86 A.L.R. Fed. 230.

Circumstances which warrant finding of constructive discharge in cases under Age Discrimination in Employment Act (29 USCS § 621 et seq.), 93 A.L.R. Fed. 10.

When does adverse employment decision based on person's foreign accent constitute national origin discrimination in violation of Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 104 A.L.R. Fed. 816.

Protection of debtor from acts of discrimination by private entity under § 525(b) of Bankruptcy Code of 1978 (11 USCS § 525(b)), 105 A.L.R. Fed. 555.

Sex discrimination in job assignment or transfer as violation of Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 123 A.L.R. Fed. 1

Who, other than specifically excluded persons, is "employee" under § 4(a)(1) of Age Discrimination in Employment Act of 1967 (29 USC § 623(a)(1)), 125 A.L.R. Fed. 273.

Employee's retention of benefits received in consideration of promise not to enforce claims under Age Discrimination in Employment Act as ratification of otherwise invalid or voidable waiver under § 7(f)(1) of act (29 USC § 626(f)(1)), 128 A.L.R. Fed. 577.

Validity, construction, and application of § 274A of Immigration and Nationality Act (8 USCS § 1324a), involving unlawful employment of aliens, 130 A.L.R. Fed. 381.

What constitutes employer's reasonable accommodation of employee's religious preferences under Title VII of Civil Rights Act of 1964, 134 A.L.R. Fed. 1.

Who is "employer" within meaning of Age Discrimination in Employment Act of 1967 (29 USCS § 621 et seq.), 137 A.L.R. Fed. 551.

Conduct of plaintiff as defense in action for employment discrimination based on sexual harassment under federal civil rights statutes, 145 A.L.R. Fed. 459.

Construction and application of § 804(f) of Fair Housing Act (42 USCA § 3604(f)), prohibiting discrimination in housing because of individual's disability, 148 A.L.R. Fed. 1.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

What constitutes direct evidence of age discrimination in action under age discrimination in employment act (29 U.S.C.A. §§ 621et seq.) - post-Price Waterhouse cases, 155 A.L.R. Fed. 283.

What constitutes racial harassment in employment violative of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.), 156 A.L.R. Fed. 1.

Sex discrimination in public education under Title IX - supreme court cases, 158 A.L.R. Fed. 563.

Liability of employer, under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed. 445.

What constitutes "Willful violation" under age discrimination in employment act (29 U.S.C. § 626 et seq.) entitling victim to liquidate damages, 165 A.L.R. Fed. 1.

What constitutes reverse sex or gender discrimination against males violative of federal constitution or statutes - nonemployment cases, 166 A.L.R. Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - public employment cases, 168 A.L.R. Fed. 1.

14 C.J.S. Civil Rights, §§ 53 to 67, 146 to 181.

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