N.M. Stat. § 28-1-7 (2026)

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, sexual orientation, gender, gender identity, pregnancy, childbirth
or condition related to pregnancy or childbirth, physical or mental disability, serious
medical condition or military status, 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;

    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, gender identity,
pregnancy, childbirth or condition related to pregnancy or childbirth, spousal affiliation,
physical or mental disability, serious medical condition or military status;

    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, gender identity, pregnancy, childbirth or condition related to
pregnancy or childbirth, physical or mental disability, serious medical condition or
military status, 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, gender identity, pregnancy,
childbirth or condition related to pregnancy or childbirth, physical or mental disability,
serious medical condition or military status, 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, gender identity, pregnancy, childbirth or condition related to
pregnancy or childbirth, spousal affiliation, physical or mental disability 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, gender identity, pregnancy, childbirth or condition related to pregnancy or
childbirth, spousal affiliation, physical or mental disability, serious medical condition,
unless based on a bona fide occupational qualification, or military status;

    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, gender identity, pregnancy, childbirth or condition related to
pregnancy or childbirth, spousal affiliation, physical or mental disability or military status;
provided that the physical or mental disability 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, gender identity,
pregnancy, childbirth or condition related to pregnancy or childbirth, spousal affiliation,
physical or mental disability or military status; provided that the physical or mental
disability 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, gender
identity, pregnancy, childbirth or condition related to pregnancy or childbirth, spousal
affiliation, physical or mental disability or military status; provided that the physical or
mental disability 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, gender identity, pregnancy, childbirth or condition related to
pregnancy or childbirth, spousal affiliation, physical or mental disability or military status;
provided that the physical or mental disability 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, gender identity, pregnancy, childbirth or condition related to
pregnancy or childbirth, spousal affiliation or physical or mental disability 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, gender identity, pregnancy,
childbirth or condition related to pregnancy or childbirth, spousal affiliation or physical or
mental disability;

   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; 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;

   J. any employer to refuse or fail to accommodate a person's physical or mental
disability or serious medical condition, unless such accommodation is unreasonable or
an undue hardship;

    K. any employer to refuse or fail to make reasonable accommodation for an
employee or job applicant with a need arising from pregnancy, childbirth or condition
related to pregnancy or childbirth;
    L. any employer to require an employee with a need arising from pregnancy,
childbirth or condition related to pregnancy or childbirth to take paid or unpaid leave if
another reasonable accommodation can be provided unless the employee voluntarily
requests to be placed on leave or the employee is placed on leave pursuant to federal
law; or

   M. a governmental entity or a public contractor to refuse or otherwise limit or put
conditions on services to a person because of race, age, religion, color, national origin,
ancestry, sex, sexual orientation, gender, gender identity, pregnancy, childbirth or
condition related to pregnancy or childbirth, physical or mental disability, serious
medical condition or spousal affiliation; provided that nothing in this subsection shall be
construed to require a governmental entity or a public contractor to provide services or
programs beyond services or programs to the specific populations that the
governmental entity or public contractor is tasked with serving.

History: 1953 Comp., § 4-33-7, enacted by Laws 1969, ch. 196, § 7; 1973, ch. 58, § 1;
1973, ch. 155, § 2; 1975, ch. 62, § 1; 1978 Comp., 28-1-7; 1983, ch. 241, § 2; 1987, ch.
76, § 2; 1995, ch. 125, § 1; 2001, ch. 347, § 1; 2003, ch. 383, § 2; 2004, ch. 115, § 1;
2019, ch. 96, § 1; 2020, ch. 49, § 2; 2023, ch. 29, § 2; 2024, ch. 21, § 5.

                                     ANNOTATIONS

The 2024 amendment, effective May 15, 2024, expanded the list of protected classes
to include a person's military status; in Subsection A, after "serious medical condition,"
added "or military status" throughout the section; in Subsection E, after "occupational
qualification" added "or military status"; and in Subsections F and G, after "physical or
mental disability," added "or military status".

The 2023 amendment, effective June 16, 2023, extended the scope of the Human
Rights Act to apply to certain actions of the State and its political subdivisions and public
contractors, expanded the list of protected classes to include gender; substituted
"handicap" with "disability" throughout the section; after "sexual orientation", added
"gender" throughout the section; and added Subsection M.

The 2020 amendment, effective May 20, 2020, added protections for pregnancy,
childbirth or related conditions; in Subsection A, after each occurrence of "gender
identity", added "pregnancy, childbirth or condition related to pregnancy or childbirth";
and added Subsections K and L.

The 2019 amendment, effective June 14, 2019, included sexual orientation and gender
identity among classes protected from unlawful discrimination by employers, and
removed the limitation of fifteen or more employees an employer must have to include
sexual orientation and gender identity as bases for unlawful discrimination practices;
and in Subsection A, added "sexual orientation, gender identity", and after "shall apply
to discrimination based on age", deleted "or, if the employer has fifteen or more
employees, to discriminate against an employee based upon the employee's sexual
orientation or gender identity".

The 2004 amendment, effective July 1, 2004, amended Subsection A to delete "sexual
orientation, gender identity" and to add at the end of the Subsection "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;".

The 2003 amendment, effective July 1, 2003, deleted "the" following "therewith
because of" in Paragraph G(2); substituted "55-9-102" for "55-9-109" following "defined
by Section" in Subsection H; substituted "a person's" for "to an individual's" following
"fail to accommodate" in Subsection J; inserted "sexual orientation, gender identity"
throughout the section; and substituted "a person" for "an individual", "person" for
"individual", and "a person's" for "an individual's" throughout the section.

The 2001 amendment, effective June 15, 2001, in Subsection A, inserted "or other
statutory prohibition" following "bona fide occupational qualification", deleted "marital
status" preceding "physical or mental handicap", and inserted "or, if the employer has
fifty or more employees, spousal affiliation" following "serious medical condition"; in
Subsections B through H, substituted "spousal affiliation" for "marital status"; and in
Subsection E, inserted "or serious medical condition" following the first instance of
"mental handicap".

The 1995 amendment, effective June 16, 1995, inserted "serious" preceding "medical
condition" throughout the section.

                          I.     GENERAL CONSIDERATION.

"Otherwise qualified". — An employee is required to demonstrate that he or she is
"otherwise qualified" to show a public policy violation based on Section 28-1-7A NMSA
1978. Chavez v. Qwest, Inc., 483 F.Supp.2d 1103 (D.N.M. 2007).

ERISA actions. — Where a complaint asserts a mixed motive of both discrimination
because of age and discrimination because of a benefits-defeating motive, ERISA does
not completely preempt a state age-discrimination claim. Ruby v. Sandia, 699
F.Supp.2d 1247 (D.N.M. 2010).

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).
Tribal Nations are not subject to the New Mexico Human Rights Act. — Where
plaintiff filed claims for sexual harassment and retaliation pursuant to the New Mexico
Human Rights Act (NMHRA), 28-1-1 to 28-1-14 NMSA 1978, against the Sandia Pueblo
police chief and the Sandia Pueblo police captain, in their individual capacities, and
where defendants moved to dismiss plaintiff's claims, arguing that the infringement test
precluded state court jurisdiction over plaintiff's claims, that the NMHRA did not apply
because Tribal Nations are not employers under the NMHRA, and that the claims were
untimely, and where the district court granted defendants' motion, finding that the
NMHRA did not provide plaintiff a cause of action, the district court did not err in
dismissing plaintiff's claims, because an unlawful discriminatory act pursuant to 28-1-
7(A) NMSA 1978 requires the action of an employer, and Tribal Nations are not
"employers" as defined by the NMHRA. South v. Lujan, 2024-NMCA-049, cert. denied.

Age and sex discrimination claims not preempted by federal law. — Where plaintiff
claimed that defendant Sandia national laboratories discriminated against her by forcing
her from her position as a neutron generator productions specialist and placing her in a
new job as a maintenance support technician, where she was unlikely to succeed
because of her age and sex, and that after defendant placed her in this new position,
defendant determined that plaintiff was not physically capable of doing the job, advised
her to apply for other positions within the organization and eventually terminated her,
and where defendant claimed that the wrongs of which plaintiff complains arose from a
breach of obligations under a collective bargaining agreement governed by the federal
Labor Management Relations Act (LMRA), dismissal of plaintiff's claims was not proper,
because the LMRA does not preempt plaintiff's age and sex discrimination claims and
New Mexico employees have the right not to suffer discrimination on the basis of age or
sex independent of a collective bargaining agreement's language about an employee's
rights. Benavidez v. Sandia National Laboratories, 212 F.Supp.3d 1039 (D.N.M. 2016).

Federal enclave doctrine barred plaintiff's plausible age and sex discrimination
claims. — Where plaintiff claimed that defendant Sandia national laboratories
discriminated against her by forcing her from her position as a neutron generator
productions specialist and placing her in a new job as a maintenance support
technician, where she was unlikely to succeed because of her age and sex, and that
after defendant placed her in this new position, defendant determined that plaintiff was
not physically capable of doing the job, advised her to apply for other positions within
the organization and eventually terminated her, although plaintiff pled sufficient facts to
make it plausible that she had a protected status under the NMHRA, being over the age
of forty and a woman, that defendant took an adverse employment action against her,
and that her protected status was a determinative factor in the decision for her
reassignment, significant change in employment status, or change in benefits, her
claims, brought under the New Mexico Human Rights Act, §§ 28-1-1 to -14 NMSA 1978,
were barred by the federal enclave doctrine because the events complained of took
place on Kirtland air force base and congress has exclusive authority over federal
enclaves. Benavidez v. Sandia National Laboratories, 212 F.Supp.3d 1039 (D.N.M.
2016).
Constitutionality of section. — This section defines what is an unlawful discriminatory
practice with sufficient particularity to effectuate the legislative intent of the Human
Rights Act, and therefore is not repugnant to the New Mexico constitution. Keller v. City
of Albuquerque, 1973-NMSC-048, 85 N.M. 134, 509 P.2d 1329, overruled on other
grounds, Green v. Kase, 1992-NMSC-004, 113 N.M. 76, 823 P.2d 318.

Burden of proving exhaustion of administrative remedies. — Plaintiffs, who have
alleged in their complaint that they have exhausted their administrative remedies, have
the burden of proving exhaustion of their administrative remedies in order for their case
to proceed at the district court level. Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-
109.

Failure to exhaust administrative remedies deprives the court of subject matter
jurisdiction. — Where plaintiffs alleged that they were dismissed from their jobs for not
participating in defendant’s religious activities; plaintiffs filed complaints with the equal
employment opportunity commission and cross filed the complaints with the human
rights division; plaintiffs did not receive a letter of non-determination from the division;
and after receiving right-to-sue letters from the commission, plaintiffs filed suit against
defendant for wrongful termination and discrimination, plaintiffs failed to exhaust their
remedies under the Human Rights Act, which deprived the district court of subject
matter jurisdiction, requiring the dismissal of the complaint with prejudice. Rist v. Design
Ctr. at Floor Concepts, 2013-NMCA-109.

Prohibiting commercial photography business from discriminating based on
sexual orientation did not violate freedom of expression. — Where plaintiff offered
wedding photography services to the general public; plaintiff’s business was a public
accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.;
plaintiff refused to photograph a same-sex commitment ceremony between defendant
and defendant’s partner on religious grounds; and plaintiff claimed that the act
compelled plaintiff to express a positive image and message about same-sex
commitment ceremonies contrary to plaintiff’s beliefs, the act did not violate plaintiff’s
first amendment rights to refrain from speaking because the act only requires that
businesses that operate as a public accommodation, cannot discriminate against
potential clients based on their sexual orientation, it does not compel plaintiff to either
speak a government-mandated message or to publish the speech of another person.
Elane Photography, LLC v. Willock, 2013-NMSC-040, aff’g 2012-NMCA-086, 284 P.3d
428.

Where plaintiff violated the Human Rights Act, Section 28-1-1 NMSA 1978 et seq., by
refusing on religious and moral grounds to photograph defendant’s commitment
ceremony with defendant’s same-sex partner; and plaintiff claimed that the act violated
plaintiff’s freedom of expression because photography is an artistic expression entitled
to first amendment protection, the act did not violate plaintiff’s freedom of expression
because the act regulated plaintiff’s conduct in its commercial business, not its speech
or right to express its views about same-sex relationships. Elane Photography, LLC v.
Willock, 2012-NMCA-086, 284 P.3d 428, cert. granted, 2012-NMCERT-008, aff’d, 2013-
NMSC-040.

Prohibiting commercial photography business from discriminating based on
sexual orientation did not violate freedom of religion. — Where plaintiff offered
wedding photography services to the general public; plaintiff’s business was a public
accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.;
plaintiff refused to photograph a same-sex commitment ceremony between defendant
and defendant’s partner on religious grounds; and plaintiff claimed that the act
compelled plaintiff to express a positive image and message about same-sex
commitment ceremonies contrary to plaintiff’s beliefs, the act did not violate plaintiff’s
first amendment free exercise rights because the act is a neutral law of general
applicability that ensures that businesses that choose to operate as a public
accommodation do not discriminate against protected classes of people, it does not
target only religiously motivated discrimination. Elane Photography, LLC v. Willock,
2013-NMSC-040, aff’g 2012-NMCA-086, 284 P.3d 428.

Where plaintiff violated the Human Rights Act, Section 28-1-1 NMSA 1978 et seq., by
refusing on religious and moral grounds to photograph defendant’s commitment
ceremony with defendant’s same-sex partner; and plaintiff claimed that the act violated
plaintiff’s freedom of religion because the act forced plaintiff to photograph same-sex
marriages in violation of plaintiff’s owner’s religious belief that marriage is the union of
one man and one woman, the act did not violate plaintiff’s freedom of religion because
the act is directed at and applies generally to all citizens transacting business through
public accommodations that deal with the public at large, any burden on religion or
religious beliefs was incidental and uniformly applied to all citizens, and a rational basis
existed to support the governmental interest in protecting specific classes of citizens
from discrimination in public accommodations. Elane Photography, LLC v. Willock,
2012-NMCA-086, 284 P.3d 428, cert. granted, 2012-NMCERT-008, aff’d, 2013-NMSC-
040.

Burden of proof. — To avoid an adverse judgment as a matter of law, the plaintiff
ordinarily need not introduce additional evidence of discrimination beyond evidence
establishing a prima facie case and evidence of the falsity of the proffered reason for
the employment action. Garcia-Montoya v. State Treasurer's Office, 2001-NMSC-003,
130 N.M. 25, 16 P.3d 1084.

Protections in Human Rights Act apply equally to all plaintiffs, regardless of
minority status. — The New Mexico Human Rights Act (NMHRA) prohibits unlawful
discrimination based on the traits declared by the legislature to be worthy of protection.
Therefore, under the plain language of the NMHRA, its protections and requirements
apply equally to all plaintiffs, regardless of their minority status. Garcia v. Hatch Valley
Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Prima facie case of employment discrimination. — To establish a prima facie case
of employment discrimination, the plaintiff must show that the plaintiff is a member of a
protected class, the plaintiff was qualified to continue in the employment position,
plaintiff's employment was terminated, and plaintiff was dismissed purportedly for
performance nearly identical to the performance of one outside the protected class who
was nonetheless retained. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g
2016-NMCA-034, 369 P.3d 1.

Where plaintiff claimed that she was subjected to employment discrimination because
she is not Hispanic, and where plaintiff proffered evidence purporting to show that she
was treated less favorably than her Hispanic coworkers in a variety of ways, some of
which were unrelated to her performance or termination, such as the scheduling and
assignment of bus routes, compensation for pre- and post-trip inspection time,
maintaining a clean bus, and enforcement of post-accident testing and suspension
policies, plaintiff's proffered evidence was insufficient to establish a prima facie case of
discriminatory termination, and the district court did not err in granting defendant's
motion for summary judgment, because plaintiff failed to come forward with evidence
that one or more Hispanic employees' performance was nearly identical to plaintiff's
performance as a whole; the evidence was therefore insufficient to rule out the most
common nondiscriminatory reasons for the termination of her employment. Garcia v.
Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Burden of proof on claims of unlawful discrimination. — For claims of unlawful
discrimination, the plaintiff bears the initial burden of demonstrating a prima facie case
of discrimination by showing that he or she is a member of the protected group, that he
or she was qualified to continue in his or her position, that his or her employment was
terminated, and that his or her position was filled by someone not a member of the
protected class, or that he or she was dismissed purportedly for misconduct nearly
identical to that engaged in by one outside of the protected class who was nonetheless
retained. A plaintiff is also afforded the opportunity to rebut the employer’s proffered
reason as pretextual. Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-034, cert.
granted.

Rebutting presumption of liability. — Where no tangible employment action has been
taken against the employee, the employer may rebut the presumption of liability by
proving elements of an affirmative defense. Ocana v. Am. Furniture Co., 2004-NMSC-
018, 135 N.M. 539, 91 P.3d 58.

Failure to state claim for common law retaliatory discharge. — Where plaintiffs,
who brought a claim for wrongful termination based on religious discrimination, alleged
that defendant discriminated against plaintiffs because of plaintiffs' religion, created a
hostile work environment for plaintiffs and retaliated against plaintiffs by terminating
plaintiffs in violation of the Human Rights Act, specifically Section 28-1-7 (A) NMSA
1978, plaintiffs did not plead a claim for the common law tort of retaliatory discharge nor
did they give defendant adequate notice of the common law tort claim separate from the
wrongful termination charge filed under the Human Rights Act. Rist v. Design Ctr. at
Floor Concepts, 2013-NMCA-109.
Public schools are public accommodations and are therefore subject to the New
Mexico Human Rights Act. — The New Mexico Human Rights Act (NMHRA) defines
"public accommodations" as "any establishment that provides or offers its services,
facilities, accommodations or goods to the public," and therefore public schools can be
classified as public accommodations under the NMHRA because public schools are
institutions that not only offer services to all school age children but also collaborate with
their families and communities, and therefore embrace the plain language of the statute
that a public school is an establishment that provides or offers its services to the public.
Johnson v. Bd. of Educ. for Albuquerque Pub. Schs., 2025-NMSC-014, aff'g 2023-
NMCA-069, 535 P.3d 687 and overruling Human Rights Comm'n of New Mexico v. Bd.
of Regents of Univ. of N.M. College of Nursing, 1981-NMSC-026, 95 N.M. 576, 624
P.2d 518.

Public secondary schools are public accommodations subject to the New Mexico
Human Rights Act. — Albuquerque public schools offer services to the community as
a whole such that refusing educational services based on race, religion, or any other
protected category would contravene legislative intent under NMSA 1978, § 28-1-7(F),
and therefore public secondary schools are public accommodations subject to the New
Mexico Human Rights Act. Johnson v. Bd. of Educ., 2023-NMCA-069, cert. granted.

Where plaintiff, a sixteen-year-old Native American student enrolled in a public high
school in Albuquerque, New Mexico, filed a complaint alleging a violation of the New
Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to 28-1-15, against defendants, after
plaintiff's English teacher, during an in-classroom Halloween activity, cut several inches
of hair from another Native American student and asked that student if she were a
"bloody Indian" and where defendants filed a motion to dismiss, arguing that public
secondary schools are not public accommodations in the administration of their
academic programs, the district court erred in granting defendants' motion for summary
judgment, because a state-created public school enacting its constitutional mandate to
educate school-age children falls within the definition of "public accommodation" as
intended by the legislature. Johnson v. Bd. of Educ., 2023-NMCA-069, cert. granted.

Summary judgment appropriate. — Because plaintiff had acknowledged that she
could not reasonably be accommodated in her former job and reassignment was not
required under the Human Rights Act, summary judgment on a Human Rights Act claim
was appropriate. Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir.
2004).

Guidance provided by interpretation of federal law. — The evidentiary methodology
adopted by the United States Supreme Court in interpreting the federal Civil Rights Act
of 1964 provides guidance for proving a violation of the New Mexico Human Rights Act.
Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433.

Reassignment. — Although the Human Rights Act was intended to eliminate unlawful
discriminatory practice, nothing in that broad purpose requires that reasonable
accommodation be read to include reassignment. Albert v. Smith’s Food & Drug Ctrs.,
Inc., 356 F.3d 1242 (10th Cir. 2004).

"Reasonable accommodation" defined. — Although the statute does not define what
constitutes a "reasonable accommodation", the New Mexico Human Rights Commission
regulations, 9.1.1.7 NMAC, define reasonable accommodation. Albert v. Smith’s Food &
Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir. 2004).

Medical marijuana is not an accommodation that must be provided for by
employer. — Where plaintiff filed a complaint with the New Mexico human rights
division alleging unlawful discrimination by defendant tractor supply company, and
where evidence at trial established that plaintiff applied for a management position with
defendant, and where, during the interview process, plaintiff advised defendant's hiring
manager of his diagnosis of HIV/AIDS and of his participation in the medical cannabis
program, and where, after being hired for the job, defendant was required to report to a
testing facility to undergo a drug test, the results of which indicated a positive test for
cannabis metabolites, and where defendant discharged plaintiff on the basis of the
positive drug test, defendant's motion to dismiss was granted because the Lynn and
Erin Compassionate Use Act, §§ 26-2B-1 through § 26-2B-10 NMSA 1978, which
authorizes New Mexico's medical cannabis program, combined with the New Mexico
Human Rights Act, §§ 28-1-1 through § 28-1-14 NMSA 1978, does not provide a cause
of action for plaintiff, as medical marijuana is not an accommodation that must be
provided for by the employer. Garcia v. Tractor Supply Company, 154 F.Supp.3d 1225
(D.N.M. 2016).

               II.    SEXUAL HARASSMENT AND DISCRIMINATION.

Refusal by commercial photography business to photograph a same-sex
commitment ceremony constituted discrimination. — Where plaintiff offered
wedding photography services to the general public; plaintiff’s business was a public
accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.; and
plaintiff refused to photograph a same-sex commitment ceremony between defendant
and defendant’s partner on religious grounds, plaintiff violated the act because plaintiff
discriminated against defendant on the basis of plaintiff’s sexual orientation. Elane
Photography, LLC v. Willock, 2013-NMSC-040, aff’g 2012-NMCA-086, 284 P.3d 428.

Where plaintiff, which was a commercial photography business, refused to photograph
defendant’s commitment ceremony with defendant’s same-sex partner based on
plaintiff’s owners’ religious and moral beliefs which prohibited plaintiff from
photographing images that convey a message that marriage can be defined other than
as the union of one man and one woman; and plaintiff constituted a public
accommodation under the Human Rights Act, Section 28-1-1 NMSA 1978 et seq.,
plaintiff violated the act by discriminating against defendant based on defendant’s
sexual orientation. Elane Photography, LLC v. Willock, 2012-NMCA-086, 284 P.3d 428,
cert. granted, 2012-NMCERT-008, aff’d, 2013-NMSC-040.
Hostile work environment sexual harassment. — A plaintiff's claim of hostile work
environment sexual harassment was supported by substantial evidence where she
proved the following: an attorney, who worked with plaintiff as a paralegal, regularly
made sexual innuendoes and told dirty jokes that were demeaning to women, engaged
in sexual discussions and flirted with female employees, inappropriately touched female
employees, commented about employees’ sexual preferences and tolerated similar
conduct by other office employees and the attorney became more aggressive when
plaintiff reported the occurrences to her employer, followed plaintiff and yelled at her,
disciplined plaintiff for pretextual reasons and berated and belittled her publicly. Littell v.
Allstate Ins. Co., 2008-NMCA-012, 143 N.M. 506, 177 P.3d 1080.

Employer liability will be presumed where there is actionable sexual harassment and
the harassing employee has supervisory authority over the victimized employee. Ocana
v. American Furn. Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58.

Proof of sex discrimination. — In plaintiff's action alleging that her employer
discriminated against her on the basis of her sex, the trial court properly allowed her to
compare her wages with those of males employed as subsidiary managers by the
company in other cities. Sonntag v. Shaw, 2001-NMSC-015, 130 N.M. 238, 22 P.3d
1188.

Hostile work environment claim was established by aggregation of incidents reflecting
severity and pervasiveness of harassment almost daily for nineteen months. Nava v.
City of Santa Fe, 2004-NMSC-039, 136 N.M. 647, 103 P.3d 571.

Prima facie case of a hostile work environment claim. — For a hostile work
environment claim to survive a summary judgment motion, a plaintiff must show that a
rational jury could find that the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment. DeLopez v. Bernalillo
Pub. Schs., 558 F. Supp. 3d 1129 (D. N.M. 2021).

Plaintiff failed to establish a claim for discrimination based on a hostile work
environment. — Where plaintiff, an elementary school teacher, brought an action
against the Bernalillo public schools and several of its employees, alleging age
discrimination, retaliation, hostile work environment, and constructive discharge in
violation of the New Mexico Human Rights Act, §§ 28-1-1 through 28-1-14 NMSA 1978,
following the constructive termination of her employment, summary judgment was
granted in defendants' favor on the hostile work environment claim, because plaintiff's
allegations that her supervisor targeted her with snide remarks, inappropriate "faces"
and false accusations, followed by unjustified disciplinary actions, an unfair performance
evaluation, and a circulated rumor that plaintiff complained to the public education
department, did not objectively amount to a severe, pervasive hostile work environment
where plaintiff was disciplined after admitting that she touched two children in separate
incidents, one of which caused the student physical harm and the other of which
defendants reasonably believed violated state statutes. DeLopez v. Bernalillo Pub.
Schs., 558 F. Supp. 3d 1129 (D. N.M. 2021).

Standard applicable to hostile work environment claims. — To state a claim for a
hostile work environment, the alleged conduct must be so severe and pervasive that the
workplace is transformed into a hostile and abusive environment for the employee.
Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-
NMCERT-009.

Where plaintiff, a resident physician at the university of New Mexico school of medicine,
was dismissed from the residency program and brought suit against the board of
regents of the university of New Mexico claiming sex discrimination, and where plaintiff
proffered a jury instruction stating that to prove her hostile work environment, she was
required to establish that defendant’s conduct, after it learned of plaintiff’s allegations of
rape, was based on her sex and was "severe or pervasive," the district court’s denial of
plaintiff’s instruction was proper, and the court’s instruction, stating that to find a hostile
work environment, plaintiff had to establish that defendant’s conduct was based on
plaintiff’s sex and was "severe and pervasive," accurately stated the law. Herald v.
Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-
009.

Adverse employment actions construed. — Adverse employment actions are
significant changes in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits. Sharpe-Miller v. Walmart, Inc. ___ F.Supp.3d ___ (D.
N.M. 2023).

Plaintiff failed to demonstrate that he suffered an adverse employment action in
his unlawful discharge claim. — Where plaintiff alleged that defendant violated the
New Mexico Human Rights Act when it discriminated against him on the basis of his
sexual orientation when it failed to properly investigate his discriminatory complaints,
demotion, and termination because of his sexual orientation, defendant's motion for
summary judgment was granted because the evidence presented did not support a
finding that defendant's demotion was in any way motivated by plaintiff's sexual
orientation, but was the result of defendant's failure to follow company protocols and
policy regarding managerial responsibilities, and the record did not support a finding
that plaintiff was constructively discharged by defendant, but was due to plaintiff's
habitual tardiness and absences, which was promptly reversed upon discovering
plaintiff's jury duty obligation. Sharpe-Miller v. Walmart, Inc. ___ F.Supp.3d ___ (D.
N.M. 2023).

Claim not barred by exclusivity provision of Worker's Compensation Act. — The
plaintiff's claim of sex discrimination under the New Mexico Human Rights Act was not
barred by the exclusivity provision of the Worker's Compensation Act, Section 52-1-6
NMSA 1978 et seq., even though her claim for worker's compensation and for violation
of the NMHRA stemmed from the same set of facts. Sabella v. Manor Care, Inc., 1996-
NMSC-014, 121 N.M. 596, 915 P.2d 901.

Claim under the Human Rights Act was not barred by the Personnel Act. — The
protections against discrimination and retaliation contained in the Human Rights Act
apply to probationary employees of the state who have been discharged pursuant to the
Personnel Act, Section 10-9-1 NMSA 1978 et seq. Rodriguez v. N.M. Dep't of
Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047.

Where the employee was hired as a probationary employee of the Department of
Workforce Solutions; while the employee was a probationary employee, the employee
was given notice of dismissal from the employee’s position pursuant to the Personnel
Act, Section 10-9-1 NMSA 1978 et seq., which permitted the department to terminate
the employee without cause; as a probationary employee, the employee had no
property interest in continuing employment; and the employee filed a claim under the
Human Rights Act alleging discrimination and retaliation based on sex and age, the
employee had a right to pursue the claims under the Human Rights Act. Rodriguez v.
N.M. Dep't of Workforce Solutions, 2012-NMCA-059, 278 P.3d 1047.

Human Rights Act prohibition against discrimination on the basis of spousal
affiliation or sexual orientation. — An owner of a mobile home park was not "using"
property for an immoral purpose when renting to cohabiting couples, or to tenants
engaged in drug trafficking in the absence of a showing of knowledge of the drug
trafficking. Maloof v. Prieskorn, 2004-NMCA-126, 136 N.M. 516, 101 P.3d 327, cert.
denied, 2004-NMCERT-011, 136 N.M. 656, 103 P.3d 580.

City of Albuquerque ordinance which prohibits public nudity does not violate the
New Mexico Human Rights Act which in general prohibits an establishment that offers
services to the public from discriminating on the basis of sex. City of Albuquerque v.
Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, cert. denied, 2004-NMCERT-006,
135 N.M. 789, 93 P.3d 1292.

Summary judgment appropriate. — Where superior told plaintiff over a two-month
period that he found plaintiff attractive and asked if plaintiff was interested in a
relationship, but did not pursue the matter after he was rebuffed by plaintiff and reduced
his contact with plaintiff; superior never made any comment connecting a promised
raise to anything other than plaintiff's job performance; and plaintiff offered no evidence
that her work performance was affected, that she felt compelled to resign, that her
superior made any suggestion that her response to his advances would have an impact
on her compensation or other aspect of her employment, or that plaintiff suffered any
adverse employment action after she reported what she believed to be harassment to
her superior, plaintiff failed to show quid pro quo sexual harassment, hostile work
environment sexual harassment, constructive discharge or retaliation. Ulibarri v. State,
2006-NMSC-009, 139 N.M. 193, 131 P.3d 43.

               III.   AGE, DISABILITY AND RACE DISCRIMINATION.
Age and disability claims must be pursued under the New Mexico Human Rights Act
and do not lie in common law tort. Employees may not pursue age and discrimination
claims outside the Act that do not contain allegations sufficient to meet the elements of
retaliatory discharge, intentional infliction of emotional distress, prima facie tort, or other
existing independent torts. Gormley v. Coca-Coca Enters., 2004-NMCA-021, 135 N.M.
128, 85 P.3d 252, aff'd, 2005-NMSC-003, 137 N.M. 192, 109 P.3d 280.

Disability based on serious medical condition. — Plaintiff established a prima facie
case of disability for purposes of an employment discrimination claim based on plaintiff's
breast cancer and on the effects of plaintiff's cancer medication which substantially
impaired plaintiff's normal sex life. Keller v. Board of Educ. of City of Albuquerque, 182
F. Supp. 2d 1148 (D.N.M. 2001).

Human Rights Act prohibits employers from refusing to reasonably accommodate
individual’s disability. Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242 (10th
Cir. 2004).

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

Bona fide occupational qualification. — Termination of nanny who, due to illness,
was unable to perform job was not a wrongful discharge under this section; the ability to
attend work regularly is a bona fide occupational qualification within the meaning of
Subsection A. Stock v. Grantham, 1998-NMCA-081, 125 N.M. 564, 964 P.2d 125, cert.
denied, 125 N.M. 322, 961 P.2d 167.

Race discrimination not shown. — Shopping center manager did not discriminate
against an East Indian store owner by refusing to renew the owner's lease of a space in
the shopping center, where the decision not to renew the lease was purely a business
judgment based on efforts to improve the center's "tenant mix". Goradia v. Hahn Co.,
1991-NMSC-040, 111 N.M. 779, 810 P.2d 798.

Protections in Human Rights Act apply equally to all plaintiffs, regardless of
minority status. — The New Mexico Human Rights Act (NMHRA) prohibits unlawful
discrimination based on the traits declared by the legislature to be worthy of protection.
Therefore, under the plain language of the NMHRA, its protections and requirements
apply equally to all plaintiffs, regardless of their minority status. Garcia v. Hatch Valley
Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Prima facie case of employment discrimination. — To establish a prima facie case
of employment discrimination, the plaintiff must show that the plaintiff is a member of a
protected class, the plaintiff was qualified to continue in the employment position,
plaintiff's employment was terminated, and plaintiff was dismissed purportedly for
performance nearly identical to the performance of one outside the protected class who
was nonetheless retained. Garcia v. Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g
2016-NMCA-034, 369 P.3d 1.

Where plaintiff claimed that she was subjected to employment discrimination because
she is not Hispanic, and where plaintiff proffered evidence purporting to show that she
was treated less favorably than her Hispanic coworkers in a variety of ways, some of
which were unrelated to her performance or termination, such as the scheduling and
assignment of bus routes, compensation for pre- and post-trip inspection time,
maintaining a clean bus, and enforcement of post-accident testing and suspension
policies, plaintiff's proffered evidence was insufficient to establish a prima facie case of
discriminatory termination, and the district court did not err in granting defendant’s
motion for summary judgment, because plaintiff failed to come forward with evidence
that one or more Hispanic employees' performance was nearly identical to plaintiff's
performance as a whole; the evidence was therefore insufficient to rule out the most
common nondiscriminatory reasons for the termination of her employment. Garcia v.
Hatch Valley Pub. Schs., 2018-NMSC-020, rev'g 2016-NMCA-034, 369 P.3d 1.

Classifications such as Caucasian, white, and non-Hispanic are protected. —
Where plaintiff, a Caucasian and of German descent, claimed that she was subject to
discrimination based on her status as a non-Hispanic, the district court erred in granting
defendant’s motion for summary judgment on the grounds that the school district that
refused to renew plaintiff’s employment contract was not aware of plaintiff’s asserted
national origin, and therefore plaintiff’s national origin could not, as a matter of law, have
been a motivating factor in the decision to terminate her employment. A national origin
discrimination claim based on the ethnic distinction between Hispanics and non-
Hispanics is actionable under the New Mexico Human Rights Act. Garcia v. Hatch
Valley Pub. Schs., 2016-NMCA-034, cert. granted.

Reverse discrimination claims. — Reverse discrimination claims are analyzed like
any other racial discrimination claim, and where plaintiff, who identified her protected
group as white or non-Hispanic, presented evidence concerning her training and
experience, as well as evidence that other school bus drivers, who did not belong to the
protected class, had similar performance issues and were not terminated, plaintiff
satisfied the prima facie case requirement to show that the circumstances of her
termination give rise to an inference of discrimination, and the burden shifts to the
school district to provide a legitimate purpose for plaintiff’s termination. Plaintiff’s
evidence was also sufficient to raise a question as to pretext, and therefore plaintiff put
forward sufficient evidence to create genuine issues of material fact with respect to her
discrimination claim against defendant. The district court erred in granting summary
judgment dismissing plaintiff’s claim. Garcia v. Hatch Valley Pub. Schs., 2016-NMCA-
034, cert. granted.

Age and race discrimination shown. — Fifty-nine year-old Navajo Indian made out a
case that he was terminated because of his age and race, where he identified age and
race-based animus, and demonstrated that he was treated differently than similarly
situated young, non-Native Americans, to a degree sufficient to support a judgment and
award of damages. Smith v. FDC Corp., 1990-NMSC-020, 109 N.M. 514, 787 P.2d 433.

Age discrimination not shown. — Employee's charge of age discrimination was not
established where the evidence showed that the employer did not breach its reduction-
in-force policy, plaintiff was not treated less favorably than younger employees, and the
employer had a legitimate nondiscriminatory reason not to retain the employee. Cates v.
Regents of N.M. Inst. of Mining & Tech., 1998-NMSC-002, 124 N.M. 633, 954 P.2d 65.

Prima face case for age discrimination. — To establish a prima facie case for age
discrimination, the plaintiff must prove that she was within the protected class of
individuals 40 or older, was performing satisfactory work, terminated from employment,
and replaced by a younger person. DeLopez v. Bernalillo Pub. Schs., 558 F. Supp. 3d
1129 (D. N.M. 2021).

Plaintiff failed to establish a prima face case of age discrimination. — Where
plaintiff, an elementary school teacher, brought an action against the Bernalillo public
schools and several of its employees, alleging age discrimination, retaliation, hostile
work environment, and constructive discharge in violation of the New Mexico Human
Rights Act, §§ 28-1-1 through 28-1-14 NMSA 1978, following the constructive
termination of her employment, summary judgment was granted in defendants' favor on
the age discrimination claim, because plaintiff submitted no direct evidence of age
discrimination, and defendants had a non-discriminatory reason for not renewing
plaintiff's contract and constructively terminating her employment, based on stipulated
evidence that plaintiff touched two children in separate incidents, one of which caused
the student physical harm and the other of which defendants reasonably believed
violated state statutes. DeLopez v. Bernalillo Pub. Schs., 558 F. Supp. 3d 1129 (D. N.M.
2021).

"Medical condition" does not include a temporary injury with minimal residual
effects. Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, 131 N.M. 607, 41
P.3d 333.

Court may not impute knowledge of certain medical conditions. — Where the
disability, resulting limitations, and necessary reasonable accommodations, are not
open, obvious, and apparent to the employer, the employer cannot be held to have
imputed knowledge of a medical condition. Trujillo v. N. Rio Arriba Elec. Coop., 2002-
NMSC-004, 131 N.M. 607, 41 P.3d 333.

Totally disabled employee. — By admitting in his worker's compensation claim that he
was totally disabled, an employee also admitted that he was not "otherwise qualified",
per Subsection A, and, thus, was barred as matter of law from recovery under the
Human Rights Act, Section 28-1-1 NMSA 1978 et seq. Kitchell v. Pub. Serv. Co., 1998-
NMSC-051, 126 N.M. 525, 972 P.2d 344.

                                 IV.   RETALIATION.
Retaliation provisions. — The plain language of the New Mexico Human Rights Act
retaliation provision in Section 28-1-7I(2) NMSA 1978 is broad enough to provide
protection to a defense attorney participating in a mediation. Kelley v. City of
Albuquerque, 542 F.3d 802 (10th Cir. 2008)

Acts of retaliation. — Prohibited acts of "threats, reprisal or discrimination" are
considered together under the general label of unlawful retaliation. Juneau v. Intel
Corp., 2006-NMSC-002, 139 N.M. 12, 127 P.3d 548.

Prima facie case of retaliation. — To present a prima facie case of retaliation,
opposition to a discriminatory practice must be shown and regardless of how a
complaint of discrimination is made to the employer, the employee's communication to
the employer must sufficiently convey the employee's reasonable concerns that the
employer has acted or is acting in an unlawful discriminatory manner and at the very
least, if the statement does not mention a specific act of discrimination, the employer
must be able to discern from the context of the statement that the employee opposes an
allegedly unlawful employment practice. Ocana v. American Furniture Co., 2004-NMSC-
018, 135 N.M. 539, 91 P.3d 58.

To make a prima facie case of retaliation, a plaintiff must show he or she engaged in
protected opposition to discrimination, he or she subsequently suffered adverse action
by the employer, and there was a causal connection between the protected activity and
the materially adverse action. DeLopez v. Bernalillo Pub. Schs., 558 F. Supp. 3d 1129
(D. N.M. 2021).

Plaintiff failed to establish a prima facie case of retaliation. — Where plaintiff, an
elementary school teacher, brought an action against the Bernalillo public schools and
several of its employees, alleging age discrimination, retaliation, hostile work
environment, and constructive discharge in violation of the New Mexico Human Rights
Act (NMHRA), §§ 28-1-1 through 28-1-14 NMSA 1978, following the constructive
termination of her employment, summary judgment was granted in defendants' favor on
the retaliation claim, because although plaintiff engaged in protected activity, filing a
grievance with the school board, she did not allege in the grievance that any
unprofessional behavior or bias against her was because of her age, or any other
protected category under the NMHRA. DeLopez v. Bernalillo Pub. Schs., 558 F. Supp.
3d 1129 (D. N.M. 2021).

Where former employee who worked as a veterinary medical officer and area
epidemiology officer for the United States Department of Agriculture (USDA) brought an
action asserting retaliation claims under the New Mexico Human Rights Act (NMHRA),
§§ 28-1-1 to 28-1-14 NMSA 1978, against employees of the New Mexico Livestock
Board (NMLB), claiming that the NMLB employees wrote negative comments about
plaintiff's job performance in correspondence to his USDA supervisor, resulting in
plaintiff's termination from the USDA, in retaliation for plaintiff's opposition to a
discriminatory practice when he disclosed that the USDA and the NMLB allowed an
infection agent to enter the human food chain on the Navajo reservation and that a
USDA employee committed fiscal fraud, the district court did not err in granting
defendants' motion for summary judgment, because plaintiff failed to establish a prima
facie case of retaliation under the NMHRA because he provided no evidence that
defendant had any knowledge of plaintiff's protected activities. Muller v. Perdue, 744
Fed. Appx. 555 (10th Cir. 2018).

Burden of proof. — In action for retaliation under the New Mexico Human Rights Act,
the plaintiff has the burden of establishing that the defendant's actions were taken with
the intent to retaliate against the plaintiff. Gioia v. Pinkerton's, Inc., 194 F. Supp. 2d
1207 (D.N.M. 2002).

Plaintiff who is not at-will employee may not pursue action for tort of retaliatory
discharge under the policy exception to the at-will doctrine when the plaintiff has an
alternative remedial grievance procedure available under a collective bargaining
agreement. Silva v. American Fed’n. of State, County & Mun. Employees, 231 F.3d 691
(10th Cir. 2001).

Continuing violation doctrine applies to retaliation claim. — The continuing
violation doctrine applies to retaliation claims. If one act contributing to a retaliation
claim based on a series of actions and not a single, discrete act occurred within the
statutory period for filing complaints, all acts creating the retaliation claim may be
considered, including facts and evidence of facts that occurred prior to the one-hundred-
eighty-day statute of limitations cut-off for filing complaints. Charles v. NMSU Regents,
2011-NMCA-057, 150 N.M. 17, 256 P.3d 29, cert. denied, 2011-NMCERT-001, 150
N.M. 558, 263 P.3d 900.

Where plaintiff complained several times about the conduct of a co-worker and after
each complaint, the co-worker and plaintiff’s supervisors retaliated with harassment,
threatening behavior, discrimination and reprisals, plaintiff’s claim of retaliation was
based on a cumulative series of acts, not a discrete discriminatory act, the continuing
violation doctrine applied, and the court could consider all of the conduct that occurred
during plaintiff’s employment, including conduct that occurred more than 180 days prior
to the date plaintiff filed a complaint. Charles v. NMSU Regents, 2011-NMCA-057, 150
N.M. 17, 256 P.3d 29, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Sufficient evidence of constructive discharge. — Where plaintiff testified that during
plaintiff’s four years of employment with defendant, plaintiff’s co-worker yelled at
plaintiff, told plaintiff to "shut up", accused plaintiff of not doing anything, called plaintiff
insulting names, subjected plaintiff to intimidating conduct by yelling at plaintiff,
slammed drawers and cabinets, refused to give plaintiff receipts for purchases made
using a university card that was issued to plaintiff, made fun of plaintiff, and told plaintiff
to hold plaintiff’s blouse closed when plaintiff bent down or the co-worker would kick
plaintiff; some of the co-worker’s conduct occurred in front of students; and plaintiff’s
supervisor yelled at plaintiff and criticized plaintiff in front of students, threw a cigarette
butt at plaintiff, unfairly criticized plaintiff’s work performance, accused plaintiff of being
late to work, and decreased plaintiff’s performance rating with respect to working
relations, plaintiff’s evidence was sufficient to support the jury’s findings that plaintiff was
constructively discharged. Charles v. NMSU Regents, 2011-NMCA-057, 150 N.M. 17,
256 P.3d 29, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Retaliatory discharge shown. — In an action by an employee against an employer
alleging gender discrimination and retaliatory discharge, since the supervisor's own
testimony constituted an admission that the employee's complaint of gender
discrimination caused him to make the determination to terminate her, the employee
was entitled to judgment as a matter of law. Brillhart v. Philips Elec. N. Am. Corp., 938
F. Supp. 742 (D.N.M. 1996), rev'd, 179 F.3d 1271 (10th Cir. 1999).

Retaliatory actions shown. — Jury reasonably concluded that retaliation was the
motive behind the unfair criticism and isolation to which the employee was subjected
after she filed a discrimination claim, as well as the employer's failure to give her the
same consideration for a particular position as other employees. Gonzales v. N.M. Dep't
of Health, 2000-NMSC-029, 129 N.M. 586, 11 P.3d 550.

Evidence established retaliation for opposing unlawful discriminatory practice. —
Where plaintiff filed a worker's compensation claim after hurting his ankle while working
at the outback steakhouse (outback) in Las Cruces, New Mexico, and where outback
terminated plaintiff's employment because it believed that plaintiff could not perform the
tasks required of his job, and where a jury found that outback violated the New Mexico
Human Rights Act (NMHRA), §§ 28-1-1 through -14 NMSA 1978, and awarded plaintiff
damages for lost wages and emotional distress, the district court did not err in denying
outback's motion for judgment as a matter of law, because plaintiff established that
outback believed, even if mistakenly, that plaintiff was physically handicapped, that his
ankle injury substantially limited one or more of his major life activities, and the record
established that plaintiff had a good faith, objectively reasonable belief that outback
violated the NMHRA by terminating him because it regarded him as having a physical
handicap. Goodman v. OS Rest. Servs. LLC, 2020-NMCA-019.

Prospective employee may be required to enter race on application for security
reasons despite provisions of Section 59-4-4C, 1953 Comp. (similar to Subsection D of
this section). 1963 Op. Att'y Gen. No. 63-163.

Law reviews. — For note and comment, "The Irrational Legacy of Romer v. Evans: A
Decade of Judicial Review Reveals the Need for Heightened Scrutiny of Legislation
That Denies Equal Protection to Members of the Gay Community," see 36 N.M.L. Rev.
565 (2006).

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).

For article, "Defending the Abusively Discharged Employee: In Search of a Judicial
Solution," see 12 N.M.L. Rev. 711 (1982).

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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15 Am. Jur. 2d Civil Rights §§ 28 to 34,
41 to 60, 98 to 175, 193 to 206, 226 to 242, 249 to 256.

Tenants or buyers: race or religious belief as permissible consideration in choosing
tenants or buyers of real estate, 14 A.L.R.2d 153.

Discharge from private employment on ground of political views or conduct, 51 A.L.R.2d
742, 29 A.L.R.4th 287, 38 A.L.R.5th 39.

Businesses or establishments falling within state civil rights statute provisions
prohibiting discrimination, 87 A.L.R.2d 120.

Blockbusting: validity and construction of anti-blockbusting regulations designed to
prevent brokers from inducing sales of realty because of actual or rumored entry of
racial group in neighborhood, 34 A.L.R.3d 1432.

Exclusion of or discrimination against physician or surgeon by hospital, 37 A.L.R.3d
645.

Aliens: constitutionality of enactment or regulation forbidding or restricting employment
of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Discrimination in provision of municipal services or facilities as civil rights violation, 51
A.L.R.3d 950.

Trailer park as place of public accommodation within meaning of state civil rights
statutes, 70 A.L.R.3d 1142.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

State laws prohibiting sex discrimination as violated by dress or grooming requirements
for customers of establishments serving food or beverages, 89 A.L.R.3d 7.

Construction and effect of state legislation forbidding job discrimination because of
physical handicap, 90 A.L.R.3d 383.
Union security arrangements in state public employment, 95 A.L.R.3d 1102.

Application of state law to age discrimination in employment, 96 A.L.R.3d 195.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately
owned residential property, 96 A.L.R.3d 497.

Identification of jobseeker by race, religion, national origin, sex, or age, in "situation
wanted" employment advertising as violation of state civil rights laws, 99 A.L.R.3d 154.

On-the-job sexual harassment as violation of state civil rights law, 18 A.L.R.4th 328.

Construction and effect of state legislation forbidding discrimination in housing on
account of physical handicap, 28 A.L.R.4th 685.

What constitutes illegal discrimination under state statutory prohibition against
discrimination in housing accommodations on account of marital status, 33 A.L.R.4th
964.

What constitutes employment discrimination on basis of "marital status," for purposes of
state civil rights laws, 44 A.L.R.4th 1044.

Discipline or discharge for sexual conduct as violative of state fair employment laws, 47
A.L.R.4th 863.

Liability of employer, supervisor, or manager for intentionally or recklessly causing
employee emotional distress, 52 A.L.R.4th 853.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

Accommodation requirement under state legislation forbidding job discrimination on
account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on
account of handicap, 78 A.L.R.4th 265.

Discrimination "because of handicap" or "on the basis of handicap" under state statutes
prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

State civil rights legislation prohibiting sex discrimination in housing, 81 A.L.R.4th 205.

What constitutes handicap under state legislation forbidding job discrimination on
account of handicap, 82 A.L.R.4th 26.

Liability for discharge of employee from private employment on ground of political views
or conduct, 38 A.L.R.5th 39.
Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Validity, construction, and application of state enactment, order, or regulation expressly
prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.

Individual liability of supervisors, managers, officers or co-employees for discriminatory
actions under state Civil Rights Act, 83 A.L.R.5th 1.

When is supervisor's or coemployee's hostile environment sexual harassment imputable
to employer under state law, 94 A.L.R.5th 1.

Discrimination against pregnant employee as violation of state fair employment laws, 99
A.L.R.5th 1.

What constitutes substantial limitation on major life activity of working for purposes of
state civil rights acts, 102 A.L.R.5th 1.

Necessity of, and what constitutes, employer’s reasonable accommodation of
employee’s religious preference under state law, 107 A.L.R.5th 623, § 7.

Refusal to hire, or dismissal from employment, on account of plaintiff's sexual lifestyle or
sexual preference as violation of federal constitution or federal civil rights statutes, 42
A.L.R. Fed. 189.

Sex discrimination in law enforcement and corrections employment, 53 A.L.R. Fed. 31.

Actions, under 42 USCS § 1983, for violations of federal statutes pertaining to rights of
handicapped persons, 63 A.L.R. Fed. 215.

Age as bona fide occupational qualification "reasonably necessary" for normal conduct
of business under § 4(f)(1) of Age Discrimination in Employment Act (29 USCS §
623(f)(1)), 63 A.L.R. Fed. 610.

Admissibility, in action under Title VII of the Civil Rights Act of 1964 (42 USCS §§ 2000e
et seq.), of evidence of discriminatory practices predating the Act, 63 A.L.R. Fed. 891.

Liability under Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.) of
employer, as successor employer, for discriminatory employment practices of
predecessor, 67 A.L.R. Fed. 806.

Disparate impact test for sex discrimination in employment under Title VII of Civil Rights
Act of 1964 (42 USCS § 2000e et seq.), 68 A.L.R. Fed. 19.

When is work environment intimidating, hostile, or offensive, so as to constitute sexual
harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS §
2000e et seq.), 78 A.L.R. Fed. 252.
Reinstatement as remedy for discriminatory discharge or demotion under Age
Discrimination in Employment Act (29 USCS § 621 et seq.), 78 A.L.R. Fed. 575.

Actions under Age Discrimination in Employment Act (29 USCS §§ 621-634)
challenging hiring or retirement practices in law enforcement employment, 79 A.L.R.
Fed. 373.

Who is "qualified" handicapped person protected from employment discrimination under
Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.) and regulations promulgated
thereunder, 80 A.L.R. Fed. 830.

Effect of mixed or dual motives in actions under Title VII (equal employment
opportunities subchapter) of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 83
A.L.R. Fed. 268.

Actionability, under federal and state antidiscrimination legislation, of foreign employer's
discriminating in favor of foreign workers in hiring and other employment matters, 84
A.L.R. Fed. 114.

Nature and burden of proof in Title VII action alleging favoritism in promotion or job
assignment due to sexual or romantic relationship between supervisor and another, 86
A.L.R. Fed. 230.

Circumstances which warrant finding of constructive discharge in cases under Age
Discrimination in Employment Act (29 USCS § 621 et seq.), 93 A.L.R. Fed. 10.

When does adverse employment decision based on person's foreign accent constitute
national origin discrimination in violation of Title VII of Civil Rights Act of 1964 (42 USCS
§§ 2000e et seq.), 104 A.L.R. Fed. 816.

Protection of debtor from acts of discrimination by private entity under § 525(b) of
Bankruptcy Code of 1978 (11 USCS § 525(b)), 105 A.L.R. Fed. 555.

Sex discrimination in job assignment or transfer as violation of Title VII of Civil Rights
Act of 1964 (42 USCS §§ 2000e et seq.), 123 A.L.R. Fed. 1

Who, other than specifically excluded persons, is "employee" under § 4(a)(1) of Age
Discrimination in Employment Act of 1967 (29 USC § 623(a)(1)), 125 A.L.R. Fed. 273.

Employee's retention of benefits received in consideration of promise not to enforce
claims under Age Discrimination in Employment Act as ratification of otherwise invalid
or voidable waiver under § 7(f)(1) of act (29 USC § 626(f)(1)), 128 A.L.R. Fed. 577.

Validity, construction, and application of § 274A of Immigration and Nationality Act (8
USCS § 1324a), involving unlawful employment of aliens, 130 A.L.R. Fed. 381.
What constitutes employer's reasonable accommodation of employee's religious
preferences under Title VII of Civil Rights Act of 1964, 134 A.L.R. Fed. 1.

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

Conduct of plaintiff as defense in action for employment discrimination based on sexual
harassment under federal civil rights statutes, 145 A.L.R. Fed. 459.

Construction and application of § 804(f) of Fair Housing Act (42 USCA § 3604(f)),
prohibiting discrimination in housing because of individual's disability, 148 A.L.R. Fed. 1.

What constitutes reverse or majority gender discrimination against males violative of
federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

What constitutes direct evidence of age discrimination in action under age
discrimination in employment act (29 U.S.C.A. §§ 621et seq.) - post-Price Waterhouse
cases, 155 A.L.R. Fed. 283.

What constitutes racial harassment in employment violative of Title VII of Civil Rights
Act of 1964 (42 U.S.C.A. § 2000e et seq.), 156 A.L.R. Fed. 1.

Sex discrimination in public education under Title IX - supreme court cases, 158 A.L.R.
Fed. 563.

Liability of employer, under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et
seq.) for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed.
445.

What constitutes "Willful violation" under age discrimination in employment act (29
U.S.C. § 626 et seq.) entitling victim to liquidate damages, 165 A.L.R. Fed. 1.

What constitutes reverse sex or gender discrimination against males violative of federal
constitution or statutes - nonemployment cases, 166 A.L.R. Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of
federal constitution or statutes - public employment cases, 168 A.L.R. Fed. 1.

14 C.J.S. Civil Rights, §§ 53 to 67, 146 to 181.