2019 New Mexico Statutes
Chapter 28 - Human Rights
Article 1 - Human Rights
Section 28-1-1 - Short title.

Universal Citation: NM Stat § 28-1-1 (2019)

Chapter 28, Article 1 NMSA 1978 may be cited as the "Human Rights Act".

History: 1953 Comp., § 4-33-1, enacted by Laws 1969, ch. 196, § 1; 2000, ch. 4, § 1.


Cross references. — For commission on status of women, see 28-3-1 NMSA 1978.

For sex discrimination prohibited, see N.M. Const., art. II, § 18.

For Uniform Owner-Resident Relations Act, see 47-8-1 NMSA 1978.

The 2000 amendment, effective February 15, 2000, substituted "Chapter 28, Article 1 NMSA 1978" for "this act".

Human Rights Act protects against discriminatory treatment, not against general claims of employer unfairness. Juneau v. Intel Corp., 2006-NMSC-002, 139 N.M. 12, 127 P.3d 548.

Evidence of discrimination. — In an action based on a claim of racial discrimination, racist statements made by defendant that were not directed at plaintiff and that did not purport to describe her did not constitute direct evidence of racial discrimination. Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999).

Punitive damages in civil rights action. — Where plaintiff sued state hospital in state court alleging that employees of the hospital had retaliated against plaintiff for filing a human rights commission claim; plaintiff did not sue any individual employees in the state court action; plaintiff obtained an award for compensatory damages in state court; and plaintiff sued individual employees of the hospital in federal court for violation of plaintiff's civil rights for retaliating against plaintiff, plaintiff was not barred from suing individual employees for retaliation and recovering punitive damages, because different rules governed the measure of damages in the state action and in the federal action. Gonzales v. Hernandez, 175 F.3d 1202 (10th Cir. 1999).

Notice requirement where federal court action. — Failure to give notice to New Mexico human rights commission before bringing action in federal court bars recovery in federal court. Harris v. Ericson, 457 F.2d 765 (10th Cir. 1972).

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)

Judicial review of discrimination claims. — Court's failure to explicitly apply framework for analyzing employment discrimination suits set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and adopted by the New Mexico Supreme Court in Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433, was not error where the court's findings were consistent with a proper application of the McDonnell Douglas/Smith framework and the record contained substantial evidence to support the court's finding that the employer did not perceive the employee to be handicapped. Martinez v. Yellow Freight Sys., 1992-NMSC-015, 113 N.M. 366, 826 P.2d 962.

Retaliatory discharge. — A common-law tort action for retaliatory discharge may be brought when the claimant alleges she was discharged from her employment because she earlier sought relief against her employer under the New Mexico Human Rights Act. Gandy v. Wal-Mart Stores, Inc., 1994-NMSC-040, 117 N.M. 441, 872 P.2d 859; EEOC v. MTS Corp., 937 F. Supp. 1503 (D.N.M. 1996).

Employer's burden of proof in sex discrimination and wrongful discharge cases. — In a sex discrimination case, as with damages recoverable in cases of wrongful discharge, the employer has the burden of proving the employee did not exercise reasonable diligence in mitigating lost earnings. It is for the jury to decide, under the facts of each case, whether seeking formal education represents care or diligence to minimize damages. Montoya v. Super Save Warehouse Foods, 1991-NMSC-003, 111 N.M. 212, 804 P.2d 403.

Availability of equal protection claim. — The law in New Mexico is unsettled as to whether a claim of discrimination in employment that is asserted under this act can also be maintained under the equal protection clause of the New Mexico constitution. Roybal v. City of Albuquerque, 653 F. Supp. 102 (D.N.M. 1986).

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. Public Employees Ret. Bd., 2004-NMSC-016, 135 N.M. 472, 90 P.3d 491.

Age and disability claims must be pursued under administrative procedures available in the New Mexico Human Rights Act and do not lie in common-law tort. Gormley v. Coca-Cola Enter., 2004-NMCA-021, 135 N.M.128, 85 P.3d 252, aff'd, 2005-NMSC-003, 137 N.M. 192, 109 P.3d 280.

Effect on municipalities. — The passage of the 1969 "Human Rights Act" does not remove the authority municipalities already possess in the realm of human rights. Whatever ordinance is passed cannot lower or be inconsistent with the state standards that have been set for human rights in this article. 1971 Op. Att'y Gen. No. 71-64.

Law reviews. — For note and comment, "For This Right There is a Remedy: New Mexico Supreme Court's Application of Ex Parte Young to Allow Suits Against the State in Gill v. Public Employees Retirement Board", see 35 N.M.L. Rev. 501 (2005).

For article, "Reticent Revolution: Prospects For Damage Suites Under New Mexico Bill of Rights," see 25 N.M.L. Rev. 173 (1995).

For student article, "The Sexual Harassment Claim Quandary: Workers' Compensation as an Inadequate and Unavailable Remedy: Cox v. Chino Mines/Phelps Dodge", see 24 N.M.L. Rev. 565 (1994).

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 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).

For article, "The Tort of 'Outrageous Conduct' In New Mexico: Intentional Infliction of Emotional Harm Without Physical Injury," see 19 N.M.L. Rev. 425 (1989).

For note, "Claiming Employment Discrimination in New Mexico Under State and Federal Law," see 21 N.M.L. Rev. 415 (1991).

For article, "Reticent Revolution: Prospects for Damage Suits Under the New Mexico Bill of Rights," see 25 N.M.L. Rev. 173 (1995).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

In-house counsel's right to maintain action for wrongful discharge, 16 A.L.R.5th 239.

Pre-emption of wrongful discharge cause of action by civil rights laws, 21 A.L.R.5th 1.

Excessiveness or adequacy of damages for wrongful termination of at-will employee under state law, 86 A.L.R.5th 397.

Standing of state, local government, or agency thereof to bring suit under Civil Rights Act of 1871 (42 USCS § 1983), 106 A.L.R. Fed. 586.

Application of Age Discrimination in Employment Act (29 USCS § 621 et seq.) to religious institutions, 136 A.L.R. Fed. 487.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 USCA § 1981a; 42 USCA § 2000e et seq.), 150 A.L.R. Fed. 601.

Actions brought under 42 U.S.C.A. §§ 1981-1983 for racial discrimination - supreme court cases, 164 A.L.R. Fed. 483.

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