28-1-1.  Short title.

Laws 2005, ch. 208, § 27, repealed 28-1-15 NMSA 1978 which would have repealed this section on July 1, 2006.

Actions.

Administrative rules, regulations.

Applicability.

Attorney fees.

Burden of proof.

Compliance.

Construction.

Construction with other law.

Costs.

Elements.

Employees.

Evidence.

Exclusivity.

Exhaustion of remedies.

Expectation of reemployment.

Federal law.

Gender and disability.

Governmental powers.

Hostile work environment.

Instructions.

Jurisdiction.

Limitation of major life activity.

Prima facia case.

           —Elements.

Remedies.

Retaliatory discharge.

Salary.

Sovereign immunity.

Time limitations.

Where a union president was not named as an individual in a union officers’ administrative complaints that were filed with the Equal Employment Opportunity Commission, union officers could not maintain a state claim under the New Mexico Human Rights Act, 28-1-1 to 28-1-7 NMSA 1978 and 28-1-9 to 28-1-14 NMSA 1978 against the president either. Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65, 1999 N.M. LEXIS 154 (N.M. 1999).

Although a hospital association that declared bankruptcy had a 40.5 percent ownership interest in an LLC that hired an employee who quit her job with the association to take job with the LLC, it was not the employee’s “employer” at the time she lost her job, and was not liable for violations of the Americans with Disabilities Act, 42 U.S.C.S. §§ 12101 et seq., Family and Medical Leave Act, 29 U.S.C.S. §§ 2601 et seq., and New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., the LLC allegedly committed. In re Otero County Hosp. Ass'n, No. 11-13686, 2014 Bankr. LEXIS 942 (Bankr. D.N.M. Mar. 11, 2014).

Mexican national’s claims for defamation of reputation and intentional infliction of emotional distress were improperly dismissed because a public official made prejudicial comments at government meetings in front of other public officials. His claim for unlawful discriminatory practices was properly dismissed because he failed to follow proper procedure and the court had no subject matter jurisdiction under 28-1-1 NMSA 1978. Dominguez v. Stone, 1981-NMCA-146, 97 N.M. 211, 638 P.2d 423, 1981 N.M. App. LEXIS 817 (N.M. Ct. App. 1981).

Trial court properly awarded attorney’s fees pursuant to 28-1-13D NMSA 1978 to a beauty college instructor who prevailed in an employment discrimination action under the Human Rights Act, 28-1-1 to 28-1-14 NMSA 1978, where the instructor entered into a contingent fee contract with her attorney under the attorney’s representation that he would seek an award of attorney’s fees from the court rather than taking his fee from the instructor’s compensation for lost wages; 28-1-13D NMSA 1978 did not require the instructor to show that she had trouble obtaining effective counsel in order to obtain an award of attorney’s fees. Lucero v. Aladdin Beauty Colleges, 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365, 1994 N.M. LEXIS 117 (N.M. 1994).

Plaintiff’s establishing that she was demoted to a position of lower rank with a 55 percent reduction in pay after she advised her employer that she had breast cancer fulfilled her burden of showing an adverse employment action against her and thus established a prima facie case of discrimination under the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq. Keller v. Bd. of Educ., 182 F. Supp. 2d 1148, 2001 U.S. Dist. LEXIS 22448 (D.N.M. 2001).

In asserting a claims of unlawful discrimination under the New Mexico Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978, an employee bears the initial burden of establishing a prima facie case; once the prima facie case is established, the employer bears the burden of producing evidence of a legitimate, nondiscriminatory reason for its action; and finally, the employee must be afforded an opportunity to rebut the employer’s proffered reason. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003, 130 N.M. 25, 16 P.3d 1084, 2001 N.M. LEXIS 32 (N.M. 2001).

Where a former employee claimed her former employer fired her because of her pregnancy and refused to rehire her, thus engaging in discriminatory employment practices as defined by 28-1-7A NMSA 1978, but failed to allege in her complaint that that she filed a grievance with the human rights commission under 28-1-10 NMSA 1978, the employer’s motion to dismiss was granted since compliance with the grievance procedure of the Human Rights Act, 28-1-1 to 28-1-14 NMSA 1978 was a prerequisite to suit. Jaramillo v. J.C. Penney Co., 1985-NMCA-002, 102 N.M. 272, 694 P.2d 528, 1985 N.M. App. LEXIS 523 (N.M. Ct. App. 1985).

In interpreting New Mexico’s Human Rights Act (Act),  28-1-1 to 28-1-15 NMSA 1978, the Supreme Court of New Mexico has indicated that it is appropriate to rely upon federal civil rights adjudication for guidance in analyzing a claim under the Act, with the following reservation: reliance on the methodology developed in the federal courts, however, should not be interpreted as an indication that New Mexico has adopted federal law as its own. The court’s analysis of the claim is based on New Mexico statute and its interpretation of the legislature’s intent, and, by this opinion, the court is not binding New Mexico law to interpretations made by the federal courts of the federal statute. Gonzales v. New Mexico Dep't of Health, 2000-NMSC-029, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550, 2000 N.M. LEXIS 351 (N.M. 2000).

Although an employee’s sex discrimination claims under the Workers’ Compensation Act, 52-1-1 to 52-1-70 NMSA 1978, and the New Mexico Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978, stemmed from the same set of facts, the two statutes remedied very different types of injuries that the employee claimed to have suffered. Sabella v. Manor Care, 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901, 1996 N.M. LEXIS 120 (N.M. 1996), limited, Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65, 1999 N.M. LEXIS 154 (N.M. 1999).

Trial court did not abuse its discretion when it awarded costs pursuant to 56-8-4B NMSA 1978 to a beauty college instructor who had prevailed in an employment discrimination action under the Human Rights Act, 28-1-1 to 28-1-14 NMSA 1978; application of 56-8-4B NMSA 1978 was not limited by whether the instructor’s damages were fixed and ascertainable because its general language demonstrated that the legislature intended to allow a discretionary award of costs in all cases to foster timely settlements. Lucero v. Aladdin Beauty Colleges, 1994-NMSC-022, 117 N.M. 269, 871 P.2d 365, 1994 N.M. LEXIS 117 (N.M. 1994).

Where an employee returned to school after quitting her job because her employer told her that she must return to work the day after delivering her baby, it was for the jury to decide if she had used care or diligence to minimize damages in the employee’s sexual discrimination action under the New Mexico human rights act, 28-1-1 to 28-1-7 NMSA 1978 and 28-1-9 to 28-1-14 NMSA 1978. Montoya v. Super Save Warehouse Foods, 1991-NMSC-003, 111 N.M. 212, 804 P.2d 403, 1991 N.M. LEXIS 27 (N.M. 1991), amended, No. 18,940, 1991 N.M. LEXIS 34 (N.M. Feb. 12, 1991).

In an action by an employee against her employer alleging retaliatory discharge based upon the employee’s complaint to her employer about sexual discrimination in violation of the human rights act, 28-1-1 NMSA 1978 et seq., the trial court erred in setting aside a jury’s verdict in favor of the employer and finding in favor of the employee as a matter of law based upon the employer’s answer at trial to a hypothetical question. The employer’s testimony was an equivocal answer, raising issues of fact which were properly submitted to the jury and were not subject to a judgment as a matter of law. Brillhart v. Philips Elecs. N. Am. Corp., 179 F.3d 1271, 1999 U.S. App. LEXIS 13186 (10th Cir. N.M. 1999).

Nothing in the Human Rights Act, 28-1-1 NMSA 1978 et seq., precludes the district court’s adherence to Rule 11-803H(3) NMRA in ruling on the admissibility of official reports or statements that are not in the nature of a transcript of the record: consequently, ordinary rules of evidence govern the admissibility of administrative findings. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015, 1990 N.M. LEXIS 232 (N.M. 1990).

Remedies provided in the Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978, are not exclusive and the tort of retaliatory discharge can be founded on a violation of 28-1-7I NMSA 1978 of the Act. Gandy v. Wal-Mart Stores, 1994-NMSC-040, 117 N.M. 441, 872 P.2d 859, 1994 N.M. LEXIS 161 (N.M. 1994).

Plaintiff had a right to pursue a claim for damages for age, gender, and disability discrimination under the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., beyond the time covered by her last contract, even though 22-10-11E NMSA 1978 precluded any legitimate expectation of reemployment of plaintiff in the education field, because plaintiff established that her contract had been renewed in the past and the contracts of similarly situated employees were renewed. Keller v. Bd. of Educ., 182 F. Supp. 2d 1148, 2001 U.S. Dist. LEXIS 22448 (D.N.M. 2001).

Former employee provided sufficient evidence to support the jury’s finding that her employer negligently retained and supervised a supervisor in violation of the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., where the employee repeatedly complained of the supervisor’s harassment to the management to no avail so that the employer knew or should have known of the supervisor’s propensity to assault or batter employees prior to the time that the supervisor actually battered the employee by opening up her pants to show co-workers her underwear. Further, the employer was clearly warned in a memorandum that the supervisor posed a major and detrimental situation to the company and that her behavior was unacceptable and negatively effected other employees. Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 2005 U.S. App. LEXIS 1167 (10th Cir. N.M. 2005), overruled in part as stated in Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 2006 U.S. App. LEXIS 24268 (10th Cir. Kan. 2006).

Former employee established a prima facie case of age, gender, and disability discrimination in violation of the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., where she established that she was demoted and constructively terminated from her position as assistant superintendent of human resources to a position representing a 55 percent reduction in her salary, which demotion came shortly after the employee advised her employer that she had been diagnosed with breast cancer. Keller v. Bd. of Educ., 182 F. Supp. 2d 1148, 2001 U.S. Dist. LEXIS 22448 (D.N.M. 2001).

New Mexico is considered a “deferral state” because it has a law, the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., prohibiting an age-based system of granting salary increases, a practice known as “stretch out,” and it has established or authorized a state authority to grant or seek relief from such practice. Mistretta v. Sandia Corp., 639 F.2d 588, 1980 U.S. App. LEXIS 12996 (10th Cir. N.M. 1980), disapproved as stated in EEOC v. Prudential Federal Sav. & Loan Asso., 763 F.2d 1166, 1985 U.S. App. LEXIS 20681 (10th Cir. Utah 1985).

In an employee’s action against her employer alleging a violation of the Human Rights Act, 28-1-1 NMSA 1978 et seq., for wrongful termination when she became pregnant, it was not error for the district court to give jury instructions on mixed motives, burden of proof, and shifting burden analysis under the McDonnell Douglas standard; the evidence supported both scenarios and the Human Rights Act permitted an award of prospective damages. Behrmann v. Phototron Corp., 1990-NMSC-073, 110 N.M. 323, 795 P.2d 1015, 1990 N.M. LEXIS 232 (N.M. 1990).

New Mexico’s Human Rights Act, 28-1-1 NMSA 1978 et seq., includes a grievance procedure which is mandatory; after a plaintiff has exhausted the grievance procedure, the state district court has exclusive jurisdiction to hear an appeal from the order of the human rights commission pursuant to 28-1-13 NMSA 1978. Roybal v. Albuquerque, 653 F. Supp. 102, 1986 U.S. Dist. LEXIS 23348 (D.N.M. 1986).

Where a former employee never invoked the administrative grievance procedure of the Human Rights Act, 28-1-1 to 28-1-14 NMSA 1978, and the action in the district court was not an appeal under 28-1-13 NMSA 1978, which provided for appeal from the district court to the supreme court and applied only to de novo appeals from a human rights commission decision, the court had jurisdiction to affirm the dismissal of the complaint pursuant to 34-5-8A(1) NMSA 1978, which set out the jurisdiction of the court of appeals. Jaramillo v. J.C. Penney Co., 1985-NMCA-002, 102 N.M. 272, 694 P.2d 528, 1985 N.M. App. LEXIS 523 (N.M. Ct. App. 1985).

In her action for disability discrimination under the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., plaintiff’s proof that she suffered a loss of libido due to medications taken for breast cancer satisfied the requirement under the physical and mental handicap definition in 28-1-2 NMSA 1978 that she was disabled because the loss of libido constituted a substantial limitation of a major life activity. Plaintiff was not required to show that her breast cancer substantially limited the major life activity of work or interfered with her work. Keller v. Bd. of Educ., 182 F. Supp. 2d 1148, 2001 U.S. Dist. LEXIS 22448 (D.N.M. 2001).

To succeed on a claim of discrimination under the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., a plaintiff must first establish a prima facie case by showing that: (1) she belongs to a class protected by each statute; (2) she suffered an adverse employment action; (3) she was qualified for her position; and (4) she was treated less favorably than others not in the class. A “disability” is a physical or mental impairment that substantially limits one or more of the major life activities of an individual, or being regarded as having such impairment. Keller v. Bd. of Educ., 182 F. Supp. 2d 1148, 2001 U.S. Dist. LEXIS 22448 (D.N.M. 2001).

Former employee was properly awarded punitive damages pursuant to the New Mexico Human Rights Act, 28-1-1 NMSA 1978 et seq., for her employer’s negligent retention and supervision of a supervisor who continually harassed and abused the employee. The evidence was sufficient to show that the employer acted recklessly when it knew or should have known that the supervisor was capable of physical assault and battery and intentionally failed to remedy the situation; further, the employee’s complaints to the employer proved entirely futile, and the jury could have reasonably inferred that the employer’s acts were taken with utter indifference to the consequences. Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 2005 U.S. App. LEXIS 1167 (10th Cir. N.M. 2005), overruled in part as stated in Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 2006 U.S. App. LEXIS 24268 (10th Cir. Kan. 2006).

Because the language of the Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978, is permissive and contains no declaration that the remedies it provides are exclusive, and because the remedies provided in the Act are not the same as the remedies available in a tort action for retaliatory discharge, the Act’s remedies are not intended to be exclusive. Therefore, exhaustion of administrative remedies under the Act is not a prerequisite to proceeding with an independent tort claim. Gandy v. Wal-Mart Stores, 1994-NMSC-040, 117 N.M. 441, 872 P.2d 859, 1994 N.M. LEXIS 161 (N.M. 1994).

The New Mexico human rights act, 28-1-1 through 28-1-7 NMSA 1978, and 28-1-9 through 28-1-14 NMSA 1978, provided remedies for sexual harassment in the workplace; this did not mean that workers’ compensation benefits could be recovered as a result of this harassment. Cox v. Chino Mines/Phelps Dodge, 1993-NMCA-036, 115 N.M. 335, 850 P.2d 1038, 1993 N.M. App. LEXIS 29 (N.M. Ct. App. 1993).

Common-law tort action for retaliatory discharge could be brought when a claimant alleged that she was discharged from her employment because she earlier sought relief against her employer under the Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978. Gandy v. Wal-Mart Stores, 1994-NMSC-040, 117 N.M. 441, 872 P.2d 859, 1994 N.M. LEXIS 161 (N.M. 1994).

Female employee-manager of a corporation could compare wages of male managers performing similar duties in subsidiary corporations of her employer in other cities to show gender-based wage discrimination; the employee was, however, required to exhaust administrative remedies under 28-1-1 NMSA 1978 et seq. Sonntag v. Shaw, 2001-NMSC-015, 130 N.M. 238, 22 P.3d 1188, 2001 N.M. LEXIS 153 (N.M. 2001).

Unless a wrongfully discharged employee had an actionable claim under the New Mexico Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978, or the New Mexico Tort Claims Act, 41-4-1 to 41-4-27 NMSA 1978, and 10-9-18 NMSA 1978, sovereign immunity would prevent him from receiving from state agencies anything other than reinstatement and back pay. Nichols v. Danley, 266 F. Supp. 2d 1310, 2003 U.S. Dist. LEXIS 9949 (D.N.M. 2003).

Employee who timely filed a sex discrimination claim with the Equal Employment Opportunity Commission properly filed a claim with the New Mexico Human Rights Division under the New Mexico Human Rights Act, 28-1-1 to 28-1-15 NMSA 1978 because, under a work-sharing agreement between the EEOC and the Division, the EEOC was an agent of the Division for purposes of filing charges. Sabella v. Manor Care, 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901, 1996 N.M. LEXIS 120 (N.M. 1996), limited, Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65, 1999 N.M. LEXIS 154 (N.M. 1999).