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 [28-1-1 NMSA 1978]; 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 [28-1-1 NMSA 1978]; 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 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.
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 2004 amendment, effective July 1, 2004, in Subsection A, deleted “sexual orientation, gender identity” preceding “physical or mental handicap”, and added “or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity” to the end.
Notes to Decisions
Analysis
Constitutionality.
Requiring that a wedding photography business not discriminate against same-sex commitment ceremonies did not violate the business’s rights to free speech or free exercise of religion. 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).
Former 4-33-7A, 1953 Comp. (now 28-1-7 NMSA 1978) is not unconstitutionally vague because it allows a city to discriminate on the basis of age in certain circumstances involving police officers allowing age discrimination if it has established a bona fide occupational qualification. Keller v. Albuquerque, 1973-NMSC-048, 85 N.M. 134, 509 P.2d 1329, 1973 N.M. LEXIS 1247 (N.M. 1973), overruled, Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318, 1992 N.M. LEXIS 36 (N.M. 1992).
Generally.
In an action by appellee employee against appellant employer, alleging that his health benefits were terminated in violation of 28-1-7 NMSA 1978, and alleging other claims of discrimination, the employer was entitled to summary judgment on the discrimination claim because the employee admitted in his worker’s compensation claim that he was not qualified for work and the Human Rights Act [28-1-1 NMSA 1978 et seq.] was not intended to cover a disabled employee’s rights as these rights were addressed by workers’ compensation and social security laws. Kitchell v. Public Serv. Co., 1998-NMSC-051, 126 N.M. 525, 972 P.2d 344, 1998 N.M. LEXIS 439 (N.M. 1998).
Ability to attend work regularly is a bona fide occupational qualification under 28-1-7A NMSA 1978 of the New Mexico Human Rights Act, and the New Mexico Human Rights Act does not prohibit parents from discharging a nanny who is too ill to care for their child. Stock v. Grantham, 1998-NMCA-081, 125 N.M. 564, 964 P.2d 125, 1998 N.M. App. LEXIS 65 (N.M. Ct. App.), cert. denied, 125 N.M. 322, 961 P.2d 167, 1998 N.M. LEXIS 236 (N.M. 1998).
Plaintiff had 300 days in which to file her Equal Employment Opportunity Commission (EEOC) complaint pursuant to 29 U.S.C.S. §§ 626(d)(2) and 633(b), as New Mexico was clearly a “deferral state;” 28-1-7 NMSA 1978 prohibited employers from discriminating based on age and 28-1-3 NMSA 1978 created the New Mexico Human Rights Commission where parties could seek relief from age discrimination. Migneault v. Peck, 973 F. Supp. 1295, 1997 U.S. Dist. LEXIS 14591 (D.N.M. 1997), aff'd in part and rev'd in part, 158 F.3d 1131, 1998 U.S. App. LEXIS 26969 (10th Cir. N.M. 1998), rev'd, 204 F.3d 1003, 2000 U.S. App. LEXIS 2811 (10th Cir. 2000).
Because New Mexico was an employment at will state, an employee or his employer could terminate employment for any reason or no reason at all as long as there was no contract for a definite term or the dismissal was not predicated upon a fraudulent basis, and neither the workmen’s compensation laws nor the human rights act had any statutory provisions touching on the issue of wrongful or retaliatory discharge based on an award of workmen’s compensation; thus, an employee could not recover damages for his employer’s alleged retaliatory, wrongful discharge action due to the employee’s assertion of his right to recover workmen’s compensation. Bottijliso v. Hutchison Fruit Co., 1981-NMCA-101, 96 N.M. 789, 635 P.2d 992, 1981 N.M. App. LEXIS 789 (N.M. Ct. App. 1981), overruled as stated in Boudar v. E G & G, Inc., 1986-NMSC-092, 105 N.M. 151, 730 P.2d 454, 1986 N.M. LEXIS 3099 (N.M. 1986), overruled, Michaels v. Anglo Am. Auto Auctions, 1994-NMSC-015, 117 N.M. 91, 869 P.2d 279, 1994 N.M. LEXIS 52 (N.M. 1994).
Age discrimination.
Employer was not entitled to summary judgment on a terminated employee’s age discrimination claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.S. § 623, and the New Mexico Human Rights Act (NMHRA) because the employee made out a prima facie case of age discrimination and there was a genuine issue of material fact whether the employer’s proffered reason for the termination was pretextual given that there was evidence in the record that the proffered reason for termination was not the only reason. Clayton v. Vanguard Car Rental U.S.A., Inc., 761 F. Supp. 2d 1210, 2010 U.S. Dist. LEXIS 137164 (D.N.M. 2010).
In age discrimination cases where a plaintiff and the alleged replacement are close in age, the court should look not only to the actual age difference but to the surrounding circumstances to determine if plaintiff has raised an inference of discrimination. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
New Mexico Human Rights Act prohibits employment discrimination on the basis of age. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
Summary judgment was proper for the employer in an employee’s age discrimination action because the employee failed to produce sufficient direct evidence of age discrimination, that the employer’s decision to dismiss the employee was pretextual, or that the employee was treated less favorably than younger employees. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
Age discrimination plaintiff in a reduction-in-force case may satisfy the fourth factor of the McDonnell-Douglas test by submitting evidence that plaintiff was treated less favorably than younger employees. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
In an age discrimination case, the fact that one person in the protected class has lost out to another person in the protected class is irrelevant so long as he (or she) has lost out because of his (or her) age; however the fact that a replacement is substantially younger than a plaintiff is a far more reliable indicator of age discrimination than is the fact that plaintiff was replaced by someone outside the protected class. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
Forty years old marks the minimum age in the protected age class in cases of employment discrimination under the New Mexico Human Rights Act. In evaluating age discrimination cases, it is the age of a plaintiff, not the supposed replacement, that makes class relevant. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
McDonnell-Douglas/Smith methodology is a useful framework for age discrimination cases where direct evidence of age discrimination is lacking. The methodology involves a shifting of burdens while proving a case of age discrimination: a plaintiff first must show a prima facie case of discrimination by proving that he is a member of the protected group, he was qualified to continue in the position, his employment was terminated, and his position was filled by someone not a member of the protected class. Once the plaintiff establishes a prima facie case, the burden shifts to the employer to show a legitimate non-discriminatory reason for its decision. If such reason is produced, the burden shifts to plaintiff to show either direct evidence of age discrimination or to prove that the employer’s reasons for dismissal were a pretext for age discrimination. Cates v. Regents of the N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65, 1998 N.M. LEXIS 16 (N.M. 1998).
Attorney fees.
Attorney fees are recoverable in actions under this article. Trujillo v. Northern Rio Arriba Elec. Coop., 2002-NMSC-004, 131 N.M. 607, 41 P.3d 333, 2001 N.M. LEXIS 408 (N.M. 2001).
Constructive discharge.
Summary judgment was properly granted to an employer in an action alleging constructive discharge because the working conditions did not force her to resign; the evidence showed that the employee merely felt uncomfortable by a director’s advances on a few occasions. Ulibarri v. State Corr. Acad., 2006-NMSC-009, 139 N.M. 193, 131 P.3d 43, 2006 N.M. LEXIS 127 (N.M. 2006).
Damages.
Punitive damages are not recoverable under this article. Trujillo v. Northern Rio Arriba Elec. Coop., 2002-NMSC-004, 131 N.M. 607, 41 P.3d 333, 2001 N.M. LEXIS 408 (N.M. 2001).
Where an employee filed a discrimination claim against a medical center under the New Mexico Human Rights Act [28-1-1 NMSA 1978], she was awarded damages and attorney’s fees after the jury determined that she had not been discriminated against but she had suffered retaliation by the medical center. 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).
Dismissal.
Order dismissing a probationary state employee’s action under the New Mexico Human Rights Act, Subsection A of this section, was erroneous because the employee was not barred from seeking relief for age and sex discrimination simply because the New Mexico Personnel Act, 10-9-3J NMSA 1978, permits discharge of a probationary state employee without cause. Rodriguez v. N.M. Dep't of Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047, 2012 N.M. App. LEXIS 33 (N.M. Ct. App. 2012).
Prima facie case of pregnancy discrimination was established because the employer presented no evidence that the employee’s work was unsatisfactory and the undisputed evidence showed that the employee was replaced by a nonpregnant employee. Further, although absence without leave was a legitimate basis for termination, conflicting evidence concerning whether the employee properly reported her absences created a genuine issue of material fact as to whether she abandoned her job. Been v. N.M. Dep't of Info. Tech., 815 F. Supp. 2d 1222, 2011 U.S. Dist. LEXIS 114982 (D.N.M. 2011).
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 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).
Employees.
Under the New Mexico Human Rights Act (NMHRA), 28-1-7 NMSA 1978, reassignment was not required under the NMHRA; thus, because the employee acknowledged that she could not be reasonably accommodated in her prior position, she failed to maintain a claim under the NMHRA, which differs significantly from the American With Disabilities Act. Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 2004 U.S. App. LEXIS 1380 (10th Cir. N.M. 2004).
Employee prevailed on discrimination complaint where evidence was sufficient to demonstrate that his employer discriminated against him because of his race or age, and an award of lost earnings was proper where it was based on substantial evidence. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433, 1990 N.M. LEXIS 57 (N.M. 1990).
Evidence.
Photography business violated the New Mexico Human Rights Act by discriminating against the potential customer on the basis of sexual orientation because the business refused to photograph same-sex weddings and told the customer of this refusal in an e-mail. 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).
Employee’s claim for retaliation resulting in constructive discharge may be based on a series of acts over time, and there was no reason to exclude the employee’s retaliation claim from the continuing violation doctrine; all of the conduct that occurred during the employee’s employment could have been considered by the jury for her claim. Charles v. Regents of N.M. State Univ., 2011-NMCA-057, 150 N.M. 17, 256 P.3d 29, 2010 N.M. App. LEXIS 133 (N.M. Ct. App. 2010), cert. denied, 150 N.M. 558, 263 P.3d 900, 2011 N.M. LEXIS 10 (N.M. 2011).
District court erred in holding that the female police officers were not treated differently than similarly situated employees where it had unfairly required them to show that the city and a personnel director knew that other employees were using compensatory time for family leave purposes and the officers’ evidence sufficiently raised an inference of discrimination. Orr v. City of Albuquerque, 417 F.3d 1144, 2005 U.S. App. LEXIS 15852 (10th Cir. N.M. 2005).
Female police officer did not suffer an adverse employment action in connection with leave requested after the birth of her second child where there was no evidence that she had requested 12 weeks’ leave. Orr v. City of Albuquerque, 417 F.3d 1144, 2005 U.S. App. LEXIS 15852 (10th Cir. N.M. 2005).
Requiring the female officers to use sick time for maternity leave was an adverse employment action for purposes of their employment discrimination claim where it diminished their leave reserves for future illnesses or early retirement and prevented them from using accumulated compensatory time, which they had received permission to accumulate and were ordered to decrease. Orr v. City of Albuquerque, 417 F.3d 1144, 2005 U.S. App. LEXIS 15852 (10th Cir. N.M. 2005).
—Insufficient.
Allegations that on a particular date, employee’s supervisor threatened him, that the supervisor thereafter physically attacked him, and that when the employee reported the incident, he was told to minimize it, as well as an allegation that the supervisor directed his anger and abuse at African-American employees, was insufficient to establish a severe and pervasive racially hostile work environment. Gerald v. Locksley, 849 F. Supp. 2d 1190, 2011 U.S. Dist. LEXIS 119688 (D.N.M. 2011).
Judgment for employee in his action against his employer, which alleged discrimination based on a medical condition in violation of 28-1-7A NMSA 1978, a provision of the New Mexico Human Rights Act, [28-1-1 NMSA 1978 et seq.], was reversed where the employee failed to present sufficient evidence to show that he suffered from a medical condition at the time of his discharge. Trujillo v. Northern Rio Arriba Elec. Coop., 2002-NMSC-004, 131 N.M. 607, 41 P.3d 333, 2001 N.M. LEXIS 408 (N.M. 2001).
—Substantial.
Truck driver, terminated during his probationary period, was not entitled to relief from an adverse judgment because there was substantial evidence that his employer did not perceive the driver was handicapped. Martinez v. Yellow Freight Sys., 1992-NMSC-015, 113 N.M. 366, 826 P.2d 962, 1992 N.M. LEXIS 63 (N.M. 1992).
—Sufficient.
Former employee presented a prima facie case of hostile work environment sexual harassment where she testified that a supervisor followed her around, approached her when she was alone, stared at her, touched himself in a sexually suggestive manner, and made her feel uncomfortable. Ocana v. Am. Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58, 2004 N.M. LEXIS 233 (N.M. 2004), limited, Spurlock v. Townes, 2016-NMSC-014, 368 P.3d 1213, 2016 N.M. LEXIS 54 (N.M. 2016).
Legislative intent.
Because the purpose behind the New Mexico Human Rights Act was to prohibit all forms of employment sexual harassment it was believed the legislature did not intend for an employer to be relieved from an otherwise valid hostile work environment claim simply because other factors aside from sex contributed to making the employee’s work environment hostile and abusive. Therefore, a mixed-motives jury instruction given in an employee’s sexual discrimination claim was not erroneous. Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571, 2004 N.M. LEXIS 562 (N.M. 2004).
28-1-7A NMSA 1978 of the New Mexico Human Rights Act sought to remedy an evil that threatened not only the rights and privileges of its inhabitants, but an evil that menaced the institutions and foundation of a free democratic state; thus, an employee’s action against an employer for sex discrimination was not barred as a matter of law by her workers’ compensation claim because the Workers’ Compensation Act, 52-1-1 to 52-1-70 NMSA 1978 operated to insure that employees who suffered disablement as a result of injuries causally connected to their work would not become dependent upon New Mexico’s welfare programs. 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).
Medical condition.
An employer is not obligated to divine the presence of a disability from an employee’s extended absence from work and the employer’s knowledge that she or he was in some sort of stressful situation, nor may knowledge of a medical condition be imputed to an employer. Trujillo v. Northern Rio Arriba Elec. Coop., 2002-NMSC-004, 131 N.M. 607, 41 P.3d 333, 2001 N.M. LEXIS 408 (N.M. 2001).
Practice and procedure.
Section 28-1-7 NMSA 1978 only defines unlawful discriminatory practices; 28-1-10 NMSA 1978 sets out the procedure for initiating an action for unlawful discrimination. 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).
—Jury request.
It appeared unreasonable, arbitrary, and unfair for the district court to deny the jury request of an employee who brought a complaint against his employer for allegedly pressuring him into admitting he had engaged in sexual harassment, and also for retaliating against him after he made his initial complaint. Juneau v. Intel Corp., 2006-NMSC-002, 139 N.M. 12, 127 P.3d 548, 2005 N.M. LEXIS 600 (N.M. 2005).
Protected persons.
This section provided anti-retaliation protection for an assistant city attorney, who represented the city — an alleged violator of discrimination laws — in equal employment opportunity commission proceedings against a client represented by the mayor prior to his election. Kelley v. City of Albuquerque, 542 F.3d 802, 2008 U.S. App. LEXIS 19706 (10th Cir. N.M. 2008).
Public policy.
Discharged at-will employee was not able to return to work. Hence, a reasonable juror could not find that the employee was “otherwise qualified” and, therefore, could not find that her employer committed the tort of wrongful termination based on a violation of the public policy. Chavez v. Qwest, Inc., 483 F. Supp. 2d 1103, 2007 U.S. Dist. LEXIS 27380 (D.N.M. 2007).
Reasonable accommodation.
Discharged at-will employee was not able to return to work. Hence, a reasonable juror could not find that the employee could be reasonably accommodated in her former job and, because a reassignment was not required, a reasonable juror could not find that the employer engaged in unlawful conduct. Chavez v. Qwest, Inc., 483 F. Supp. 2d 1103, 2007 U.S. Dist. LEXIS 27380 (D.N.M. 2007).
District court properly granted summary judgment in favor of an employer in a former employee’s action alleging violation of this section, as a result of the employer’s failure to reassign the employee to a different position in order to alleviate her asthmatic condition; the employee acknowledged that she could not reasonably be accommodated in her former job, and the district court properly concluded that the Human Rights Act, 28-1-1 NMSA 1978 et seq., did not require reassignment as a reasonable accommodation. Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 2004 U.S. App. LEXIS 1380 (10th Cir. N.M. 2004).
Remedies.
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).
Retaliation.
Former employee's retaliation claim failed because no evidence showed that she engaged in protected opposition to discrimination; although she asked to be moved to a different shift, she never suggested that her supervisor was discriminating against her. Macias v. Southwest Cheese Co., LLC, 624 Fed. Appx. 628, 2015 U.S. App. LEXIS 14832 (10th Cir. 2015).
Employer was entitled to summary judgment on the employee's retaliation claims under the New Mexico Human Rights Act and Title VII of the Civil Rights Act of 1964 because the employee failed to produce evidence to establish a causal connection between a protected activity and an adverse employment action. Walton v. N.M. State Land Office, 49 F. Supp. 3d 920, 2014 U.S. Dist. LEXIS 136541 (D.N.M. 2014), aff'd, 821 F.3d 1204, 2016 U.S. App. LEXIS 7030 (10th Cir. N.M. 2016).
Summary judgment was properly granted to an employer in an action by a former employee alleging retaliation after the employee rebuffed supervisor’s sexual advances, because the critical comments made by supervisor were isolated and minor, and did not constitute a significant, harmful change in the conditions of employment. Ulibarri v. State Corr. Acad., 2006-NMSC-009, 139 N.M. 193, 131 P.3d 43, 2006 N.M. LEXIS 127 (N.M. 2006).
Plaintiff failed to make a prima facie showing of retaliation by his employer or by its security firm in violation of 28-1-7 NMSA 1978 under the New Mexico Human Rights Act, where he did not show a causal connection between engaging in a protected activity, an interview with a human resources employee, and any adverse employment action. The employer’s decision to enforce peace by moving one employee did not indicate a retaliatory intent. Gioia v. Pinkerton's, Inc., 194 F. Supp. 2d 1207, 2002 U.S. Dist. LEXIS 6034 (D.N.M. 2002).
Plaintiff’s burden of establishing a prima facie case of retaliation under the New Mexico Human Rights Act, 28-1-7 NMSA 1978, is identical to his burden under Title VII. Gioia v. Pinkerton's, Inc., 194 F. Supp. 2d 1207, 2002 U.S. Dist. LEXIS 6034 (D.N.M. 2002).
Salary.
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, in accordance with 28-1-7A NMSA 1978. Sonntag v. Shaw, 2001-NMSC-015, 130 N.M. 238, 22 P.3d 1188, 2001 N.M. LEXIS 153 (N.M. 2001).
Sexual harassment.
There were triable factual issues with regard to a former employee's hostile work environment claim concerning the severity and pervasiveness of the alleged harassment, which included a co-worker's having exposed himself in the workplace; there also was a factual dispute concerning whether the employer was negligent, as the exposure incidents were allegedly reported to the employer, and the co-worker previously had allegedly passed around a picture of his genitals to several managers. Macias v. Southwest Cheese Co., LLC, 624 Fed. Appx. 628, 2015 U.S. App. LEXIS 14832 (10th Cir. 2015).
Former employee's quid pro quo harassment claim failed, as the evidence did not support her theory that she was disciplined and fired for refusing to engage in a sexual relationship with a supervisor; the employee testified that the supervisor never made any sexual advance toward her, and there was no evidence tying any infraction to her refusal to submit to sexual conduct. Macias v. Southwest Cheese Co., LLC, 624 Fed. Appx. 628, 2015 U.S. App. LEXIS 14832 (10th Cir. 2015).
Summary judgment was properly granted to an employer in an action alleging quid pro quo sexual harassment, where there was no evidence that the employee’s supervisor indicated that the employee’s response to his advances would have an impact on her compensation or any other aspect of her employment, nor was there any evidence that the supervisor took any action to deprive the employee of a tangible employment benefit after he was rebuffed. Ulibarri v. State Corr. Acad., 2006-NMSC-009, 139 N.M. 193, 131 P.3d 43, 2006 N.M. LEXIS 127 (N.M. 2006).
Evidence was sufficient to sustain a verdict against an employer, although not the damages awarded, in an employee’s action under the hostile work environment theory, where numerous witnesses testified that the employee’s supervisor treated female employees differently than their male counterparts. There was substantial evidence that any harassment suffered by the employee was “because of” her sex. Nava v. City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571, 2004 N.M. LEXIS 562 (N.M. 2004).
Where an employee instituted an action for damages caused by sexual harassment on the job and the complaint was dismissed for failure to exhaust her administrative remedies under the New Mexico Human Rights Act, 28-1-1 to 28-1-7, 28-1-9 to 28-1-14 NMSA 1978, the employee could maintain a common law tort action. Phifer v. Herbert, 1993-NMCA-012, 115 N.M. 135, 848 P.2d 5, 1993 N.M. App. LEXIS 8 (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).
Summary judgment.
Employer was not entitled to summary judgment on a terminated employee’s sex discrimination claims under Title VII, 42 U.S.C.S. § 2000e-2, and the New Mexico Human Rights Act (NMHRA) because there was a genuine issue of material fact whether the employer’s proffered reason for the termination was pretextual given that there was evidence in the record that the proffered reason for termination was not the only reason. There were also genuine issues of material fact whether another employee was biased on account of the terminated employee’s gender and whether his actions caused, in part, the termination. Clayton v. Vanguard Car Rental U.S.A., Inc., 761 F. Supp. 2d 1210, 2010 U.S. Dist. LEXIS 137164 (D.N.M. 2010).
Time limitation.
Employee could not seek redress against an employer under the Age Discrimination in Employment Act, 29 U.S.C.S. § 621 et seq. where the alleged discriminatory conduct preceded the filing of his complaint with the Equal Opportunity Employment Commission (EEOC) by 300 days and where 28-1-7 NMSA 1978 requires the filing of a charge of age discrimination with the EEOC within 300 days of the aggrieved conduct. As the employee admitted that he felt discriminated against throughout his employment because of his age and mentioned several specific incidents that supported his feeling, he showed that he was on either actual notice or inquiry notice of the need to assert his rights and consequently, the continuing violation doctrine was not applicable. Ellison v. Sandia Nat'l Labs., 192 F. Supp. 2d 1240, 2002 U.S. Dist. LEXIS 6035 (D.N.M. 2002), aff'd, 60 Fed. Appx. 203, 2003 U.S. App. LEXIS 3852 (10th Cir. N.M. 2003).
Time limitations.
Summary judgment to the employer on the age discrimination claim was proper because the statute of limitations began to run upon the employee’s termination, she failed to allege sufficient facts regarding the nature of her efforts and diligence prior to discovering the cause of action to equitably toll the statute of limitations, and the employer’s actions of providing two different reasons for the termination were not grounds for applying equitable estoppel. Slusser v. Vantage Builders, Inc., 2013-NMCA-073, 306 P.3d 524, 2013 N.M. App. LEXIS 46 (N.M. Ct. App. 2013).
Statute of limitations in age discrimination cases commences when a plaintiff knows or should know of the adverse employment action, regardless of whether the plaintiff then has or should have knowledge of the employer’s discriminatory intent. Slusser v. Vantage Builders, Inc., 2013-NMCA-073, 306 P.3d 524, 2013 N.M. App. LEXIS 46 (N.M. Ct. App. 2013).
Notes to Unpublished Decisions
Analysis
Relationship to federal law.
Unpublished decision: Because decedent was not a qualified individual under the Americans with Disabilities Act, he was not a “person otherwise qualified” entitled to relief under the New Mexico Human Rights Act.Valdez v. McGill, 462 Fed. Appx. 814, 2012 U.S. App. LEXIS 2783 (10th Cir. N.M. 2012).
Retaliation.
Unpublished decision: Teacher failed to establish retaliation; no causal link was shown between her discrimination complaint and the issuance of disciplinary letters, her relocation to a portable classroom was not materially adverse, and even if causation was shown between the discrimination complaint and the initial rejection of her response to a notice to rehire, the school's claim of an honest belief that the response was untimely was not shown to be pretextual. Unal v. Los Alamos Pub. Sch., 638 Fed. Appx. 729, 2016 U.S. App. LEXIS 1480 (10th Cir. N.M. 2016).
Research References and Practice Aids
Cross references.
Definitions, 28-1-2 NMSA 1978.
New Mexico Law Review.
Note: For This Right There Is a Remedy: The New Mexico Supreme Court’s Application of Ex Parte Young to Allow Suits Against the State in Gill v. Public Employees Retirement Board, Jaime R. Fontaine, 35 N.M. L. Rev. 501 (2005).
Note: Civil Rights-No Private Attorney General Exception To The American Rule In New Mexico: New Mexico Right To Choose/National Abortion Rights Action League v. Johnson, Allison Crist, 31 N.M. L. Rev. 585 (2001).
Workers’ Compensation Law — The Sexual Harassment Claim Quandary: Workers’ Compensation As An Inadequate And Unavailable Remedy: Cox v. Chino Mines/Phelps Dodge, Carlos M. Quinones, 24 N.M. L. Rev. 565 (1994).