2021 New Mexico Statutes
Chapter 28 - Human Rights
Article 1 - Human Rights
Section 28-1-2 - Definitions.

As used in the Human Rights Act:

A. "person" means one or more individuals, a partnership, association, organization, corporation, joint venture, legal representative, trustees, receivers or the state and all of its political subdivisions;

B. "employer" means any person employing four or more persons and any person acting for an employer;

C. "commission" means the human rights commission;

D. "director" or "bureau" means the human rights bureau of the labor relations division of the workforce solutions department;

E. "employee" means any person in the employ of an employer or an applicant for employment;

F. "labor organization" means any organization that exists for the purpose in whole or in part of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employment;

G. "employment agency" means any person regularly undertaking with or without compensation to procure opportunities to work or to procure, recruit or refer employees;

H. "public accommodation" means 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;

I. "housing accommodation" means any building or portion of a building that is constructed or to be constructed, which is used or intended for use as the residence or sleeping place of any individual;

J. "real property" means lands, leaseholds or commercial or industrial buildings, whether constructed or to be constructed, offered for sale or rent, and any land rented or leased for the use, parking or storage of house trailers;

K. "secretary" means the secretary of workforce solutions;

L. "unlawful discriminatory practices" means those unlawful practices and acts specified in Section 28-1-7 NMSA 1978;

M. "physical or mental handicap" means a physical or mental impairment that substantially limits one or more of a person's major life activities. A person is also considered to be physically or mentally handicapped if the person has a record of a physical or mental handicap or is regarded as having a physical or mental handicap;

N. "major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

O. "applicant for employment" means a person applying for a position as an employee;

P. "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived;

Q. "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;

R. "reasonable accommodation" means modification or adaptation of the work environment, work schedule, work rules or job responsibilities, and reached through good faith efforts to explore less restrictive or less expensive alternatives to enable an employee to perform the essential functions of the job and that does not impose an undue hardship on the employer;

S. "undue hardship" means an accommodation requiring significant difficulty or expense when considered in light of the following factors:

(1) the nature and cost of the accommodation;

(2) the financial resources of the employer involved in the provision of the reasonable accommodation;

(3) the number of persons the employer employs;

(4) the effect of the accommodation on expenses and resources;

(5) the impact of the accommodation otherwise upon the employer's business;

(6) the overall financial resources of the employer;

(7) the overall size of the business of an employer with respect to the number, type and location of its facilities;

(8) the type of operation of the employer, including the composition, structure and functions of the workforce of the employer; or

(9) the geographic separateness or administrative or fiscal relationship to the employer of the employer's facilities;

T. "cultural or religious headdresses" includes hijabs, head wraps or other headdresses used as part of an individual's personal cultural or religious beliefs;

U. "protective hairstyles" includes such hairstyles as braids, locs, twists, tight coils or curls, cornrows, bantu knots, afros, weaves, wigs or head wraps; and

V. "race" includes traits historically associated with race, including hair texture, length of hair, protective hairstyles or cultural or religious headdresses.

History: 1953 Comp., § 4-33-2, enacted by Laws 1969, ch. 196, § 2; 1973, ch. 155, § 1; 1983, ch. 241, § 1; 1987, ch. 76, § 1; 1987, ch. 342, § 16; 1993, ch. 268, § 1; 2003, ch. 383, § 1; 2007, ch. 200, § 17; 2020, ch. 49, § 1; 2021, ch. 19, § 3; 2021, ch. 37, § 3.

The 2021 amendment, effective July 1, 2021, defined "cultural or religious headdresses", "protective hairstyles", and "race" as used in the Human Rights Act; added new Subsections T through V.

Laws 2021, ch. 19, § 3 and Laws 2021, ch. 37, § 3, both effective July 1, 2021, enacted identical amendments to this section. The section was set out as amended by Laws 2021, ch. 37, § 3. See 12-1-8 NMSA 1978.

The 2020 amendment, effective May 20, 2020, defined "reasonable accommodation" and "undue hardship" as used in the Human Rights Act, and added Subsections R and S.

The 2007 amendment, effective July 1, 2007, defined "bureau" as the human rights bureau of the labor relations division of the workforce solutions department and "secretary" as the secretary of workforce solutions.

The 2003 amendment, effective July 1, 2003, in Subsection M, substituted "a person's" for "an individual's" preceding "major life activities", substituted "A person" for "An individual" preceding "is also considered"; and added Subsections P and Q.

The 1993 amendment, effective June 18, 1993, substituted "labor department" for "department of labor" in Subsection D.

Commercial photography business was a public accommodation. — Where plaintiff offered photography services to the public on a commercial basis and solicited customers by offering its services to the public at large through its website, advertisements on multiple search engines, and in the Yellow Pages; and plaintiff did not participate in selective advertising, such as telephone solicitation, or in any way seek to target a select group of people through its advertisements, plaintiff constituted a public accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq. Elane Photography, LLC v. Willock, 2012-NMCA-086, 284 P.3d 428, cert. granted, 2012-NMCERT-008.

University of New Mexico is not a "public accommodation" within the meaning of the New Mexico Human Rights Act, and is not subject to the jurisdiction of the human rights commission in the instance of a nursing student's complaint of racial discrimination. Human Rights Comm'n v. Board of Regents, 1981-NMSC-026, 95 N.M. 576, 624 P.2d 518.

Meaning of "places of accommodation" in former law. — Single dwellings, duplexes and apartment buildings, being in their nature distinctly private, were not "places of accommodation" as defined in the Civil Rights Act, 49-8-1 to 49-8-7, 1953 Comp. (now repealed), and consequently the restrictions against discrimination did not apply thereto. 1963 Op. Att'y Gen. No. 63-150 (opinion rendered under prior law).

Law reviews. — For note and comment, "New Tort Rules Unmarried Partners: The Enhanced Potential for Successful Loss of Consortium and NIED Claims by Same Sex Partners in New Mexico After Lozoya", see 34 N.M.L. Rev. 461 (2004).

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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 A.L.R.5th 467.

Meaning of term "employer" as defined in § 701(b) of Title VII of Civil Rights Act of 1964, as amended (42 USCS § 2000e(b)), 69 A.L.R. Fed. 191.

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

What constitutes religious harassment in employment in violation of Title VII of Civil Rights Act of 1964 (42 USCA § 2000e et seq.), 149 A.L.R. Fed. 405.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - nonemployment cases, 152 A.L.R. Fed. 1