As used in the Human Rights Act [28-1-1 NMSA 1978]:
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; and
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.
HISTORY:
1953 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.
Editor’s notes.
Laws 2005, ch. 208, § 27, repealed 28-1-15 NMSA 1978 which would have repealed this section on July 1, 2006.
Amendment Notes.
The 2007 amendment, effective July 1, 2007, rewrote Subsection D, which read: “‘director’ means the director of the human rights division of the labor department”; and in Subsection K, substituted “secretary of workforce solutions” for “secretary of labor”.
Notes to Decisions
Limitation of major life activity.
Constitutionality.
Because a rational basis exists to support the governmental interest in protecting specific classes of citizens from discrimination in public accommodations, the New Mexico Human Rights Act does not violate the free exercise clause protections under the First Amendment. Elane Photography, LLC v. Willock, 2012-NMCA-086, 2012-NMCA-086, 284 P.3d 428, 2012 N.M. App. LEXIS 53 (N.M. Ct. App. 2012), aff'd, 2013-NMSC-040, 309 P.3d 53, 2013 N.M. LEXIS 284 (N.M. 2013).
Applying the New Mexico Human Rights Act (NMHRA) to the photography business to prohibit it from discriminating against customers based on their sexual orientation did not violate the business’s freedom of religion because it only mandated that the business not use its personal religious beliefs to circumvent laws of general applicability that proscribed discrimination in commerce, and did not deny the business the right to express its religious opinion. Elane Photography, LLC v. Willock, 2012-NMCA-086, 2012-NMCA-086, 284 P.3d 428, 2012 N.M. App. LEXIS 53 (N.M. Ct. App. 2012), aff'd, 2013-NMSC-040, 309 P.3d 53, 2013 N.M. LEXIS 284 (N.M. 2013).
Applying the New Mexico Human Rights Act (NMHRA) to the photography business to prohibit it from discriminating against customers based on their sexual orientation did not violate the business’s freedom of expression because: (1) the business’ control over the photographs it was hired to take did not transform the photographs into a message from the business; (2) the NMHRA regulated the business’ conduct in its commercial business, not its speech or right to express its own views about same-sex relationships; (3) without explanatory speech, the act of photographing a same-sex ceremony did not express any opinions regarding same-sex commitments; and (4) the business was not the speaker and did not express its own message by taking photographs. Elane Photography, LLC v. Willock, 2012-NMCA-086, 2012-NMCA-086, 284 P.3d 428, 2012 N.M. App. LEXIS 53 (N.M. Ct. App. 2012), aff'd, 2013-NMSC-040, 309 P.3d 53, 2013 N.M. LEXIS 284 (N.M. 2013).
Applicability.
Photography business constituted a public accommodation under Subsection H of this section and could not discriminate against any class protected by the New Mexico Human Rights Act because it was a public business and commercial enterprise, as it advertised its services to the public at large, and anyone who wanted to access its website could do so. Elane Photography, LLC v. Willock, 2012-NMCA-086, 2012-NMCA-086, 284 P.3d 428, 2012 N.M. App. LEXIS 53 (N.M. Ct. App. 2012), aff'd, 2013-NMSC-040, 309 P.3d 53, 2013 N.M. LEXIS 284 (N.M. 2013).
University of New Mexico is not a “public accommodation” within the meaning of the New Mexico Human Rights Act, 28-1-2 NMSA 1978, and is therefore not subject to the jurisdiction of the Human Rights Commission. Human Rights Comm'n v. Board of Regents, 1981-NMSC-026, 95 N.M. 576, 624 P.2d 518, 1981 N.M. LEXIS 2264 (N.M. 1981).
Limitation of major life activity.
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).
Public nudity.
Where defendant owned a body-piercing shop and she offered free nipple piercings to whomever would be willing to sit in a window with his/her breasts exposed to the public, Albuquerque City Ordinance ch. 46 § 11-8-3(B) did not put defendant in a position of violating 28-1-2H NMSA 1978, as the ordinance did not discriminate on the basis of sex in violation of the New Mexico Equal Rights Act, N.M. Const. art II § 18. City of Albuquerque v. Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, 2004 N.M. App. LEXIS 43 (N.M. Ct. App.), cert. denied, 135 N.M. 787, 93 P.3d 1292, 2004 N.M. LEXIS 249 (N.M. 2004).
Remedies.
Concerns addressed by 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 are quite different from those addressed by the workers’ compensation laws, and the way to maintain public policies against sexual harassment on the job is to pursue the common-law or statutory remedies available to promote these policies and not to engraft those policies on to a very different legislative scheme such as the Workers’ Compensation Act. 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).
Sexual orientation.
When a wedding photography business refused to photograph a same-sex commitment ceremony, it violated the New Mexico Human Rights Act; there is no basis for distinguishing between discrimination based on “sexual orientation” and discrimination based on the conduct of publicly committing to a person of the same sex. Elane Photography, LLC v. Willock, 2013-NMSC-040, 309 P.3d 53, 2013 N.M. LEXIS 284 (N.M. 2013), cert. denied, 134 S. Ct. 1787, 188 L. Ed. 2d 757, 2014 U.S. LEXIS 2453 (U.S. 2014).
Standing.
Human rights commission lacked the necessary standing to prosecute a claim of racial discrimination that a student filed against a university in which she was enrolled; the commission’s action was erroneously based on 28-1-2 NMSA 1978 in the New Mexico Human Rights Act which did not apply because the university was not a public accommodation within the meaning of 28-1-2 NMSA 1978 because universities were not public accommodations either historically or within the ordinary and usual sense of the words. Human Rights Comm'n v. Board of Regents, 1981-NMSC-026, 95 N.M. 576, 624 P.2d 518, 1981 N.M. LEXIS 2264 (N.M. 1981).
Time limitation.
—Continuing violation.
Although plaintiff failed to file her age, gender, and disability discrimination claim against her employer within the 180-day statutory period required by 28-1-2 NMSA 1978, her action was not barred because she established a “continuing violation” by the employer. She established that employer initially offered her a contract that was essentially identical to the one she had been advised would not be renewed, leading her to believe that she was no longer being discriminated against, and then subsequently demoted her and reduced her salary by 55 percent more than 180 days after advising her that her original contract would not be renewed. Keller v. Bd. of Educ., 182 F. Supp. 2d 1148, 2001 U.S. Dist. LEXIS 22448 (D.N.M. 2001).