New Mexico — Workplace Discrimination

The New Mexico Human Rights Act (NMSA 1978, §§ 28-1-1 to 28-1-15) prohibits employment discrimination and is enforced by the Human Rights Bureau of the Labor Relations Division of the New Mexico Department of Workforce Solutions. Under the Act, "employer" is defined as any person employing four or more persons and any person acting for an employer. This four-employee threshold is set in the statute itself at NMSA 1978, § 28-1-2(B), not just in agency regulations. The statute also establishes the Bureau's enforcement authority, not merely the implementing regulations.

Source: NMSA 1978, § 28-1-2(B) Source: NMSA 1978, §§ 28-1-1 to 28-1-15

Under NMSA 1978, § 28-1-7(A), it is unlawful for an employer to discriminate in hiring, discharge, promotion, demotion, or terms and conditions of employment based on race, age, religion, color, national origin, ancestry, sex, sexual orientation, gender, gender identity, pregnancy (including childbirth or condition related to pregnancy or childbirth), physical or mental disability, serious medical condition, or military status. Employers with fifty or more employees are additionally prohibited from discriminating based on spousal affiliation. A 2024 amendment (HB0302, effective May 15, 2024) added military status—defined as active membership or veteran status in the armed forces or state defense force, including spouses and children of active members or veterans—to the list of protected classes.

Source: NMSA 1978, § 28-1-7 (as amended by HB0302, 2024)

NMSA 1978, § 28-1-7(I)(2) makes it unlawful for any person or employer to "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." This provision protects three categories of activity: (1) opposing unlawful discriminatory practices, (2) filing a complaint with the Human Rights Bureau, and (3) testifying or participating in Human Rights Act proceedings.

Protected opposition activity

The New Mexico Supreme Court has held that the statutory language "threats, reprisal or discrimination" encompasses all forms of unlawful retaliation and should be considered together under the general label of retaliation. The statute's plain language is broad. In Kelley v. City of Albuquerque, the Tenth Circuit held that the retaliation provision in § 28-1-7(I)(2) is "broad enough to provide protection to a defense attorney participating in a mediation," demonstrating the Act's expansive protective scope beyond the complaining employee.

Opposition standard

To establish protected opposition, an employee must show that they held a good-faith, objectively reasonable belief that the employer engaged in conduct prohibited by the Human Rights Act. New Mexico courts require that the opposition relate to a protected characteristic under the Act. In one Tenth Circuit case applying New Mexico law, summary judgment was granted on a retaliation claim where the plaintiff filed a grievance with her school board but did not allege in the grievance that the unprofessional behavior or bias against her was because of her age or any other protected category under the Act.

Participants in proceedings

The statute explicitly protects individuals who file complaints, testify, or participate in any proceeding under the Human Rights Act. This protection extends to state employees who are otherwise subject to at-will employment rules. In Rodriguez v. N.M. Dep't of Workforce Solutions, the New Mexico Court of Appeals held that "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," confirming that probationary employees with no property interest in continued employment may still pursue retaliation claims under the Act.

Interaction with common-law retaliatory discharge

New Mexico recognizes a common-law tort action for retaliatory discharge when a claimant alleges discharge because they sought relief under the Human Rights Act. However, plaintiffs who bring a statutory retaliation claim under § 28-1-7(I)(2) and allege termination in violation of the Act do not automatically state a separate common-law retaliatory-discharge claim unless they explicitly plead it as a distinct cause of action. Courts have found that alleging retaliation "in violation of the Human Rights Act, specifically Section 28-1-7(A)" does not give adequate notice of a separate common-law tort claim.

The Human Rights Bureau of the Labor Relations Division of the Workforce Solutions Department receives and investigates retaliation complaints using the same administrative procedures that govern discrimination claims under the Act.

Source: NMSA 1978, § 28-1-7

Under the New Mexico Human Rights Act (NMHRA), a person alleging employment discrimination or retaliation must file a written complaint with the Human Rights Bureau within 300 calendar days of the most recent alleged act of discrimination. This 300-day filing period is set by NMSA 1978, § 28-1-10(A), which provides: "All complaints shall be filed ... within three hundred days after the alleged act was committed."

How the deadline is calculated

The deadline is measured from the last alleged act or occurrence of discrimination or retaliation. The NMHRA expressly allows filings with the U.S. Equal Employment Opportunity Commission (EEOC) or similar agencies under a work-sharing agreement to be deemed as filed with the Human Rights Bureau on the same date, preserving the timeliness of claims filed initially with federal agencies. This parallel procedure is confirmed by N.M. Admin. Code § 9.1.1.8(B)(2).

Administrative exhaustion is required

The NMHRA requires claimants to exhaust the Bureau process before bringing suit in court. This means following the Act’s administrative grievance route—filing a complaint, having it investigated and resolved (either by determination, conciliation, or waiver)—before filing a lawsuit. New Mexico appellate courts have made clear that this exhaustion requirement is not just a technical rule but a jurisdictional prerequisite: failure to follow it deprives the district court of jurisdiction to hear an NMHRA-based claim (see Mitchell-Carr v. McLendon, 127 N.M. 282, 980 P.2d 65 (1999); Sonntag v. Shaw, 130 N.M. 238, 22 P.3d 1188 (2001)).

Exception for independent tort claims

However, exhaustion is not required for common-law tort claims based on wrongful discharge or related theories that do not rely explicitly on the NMHRA. New Mexico courts have recognized in opinions such as Beavers v. Johnson Controls World Servs., Inc., 120 N.M. 343, 901 P.2d 761 (1995), that these causes of action can proceed independently if adequately pled.

Source: NMSA 1978, § 28-1-10

The New Mexico Human Rights Act (NMHRA) authorizes a range of remedies for prevailing complainants in discrimination cases. Under NMSA 1978, § 28-1-11(E), a district court may order "whatever relief it deems appropriate," which expressly includes:

• Reinstatement to the former or a comparable position;
• Back pay for lost wages;
• Compensatory damages (labeled as "actual damages"), including damages for emotional distress or other provable intangible injuries;
• Front pay, when reinstatement is not feasible;
• Equitable or injunctive relief, such as cease-and-desist orders or requirements for employers to post remedial notices.

No statutory caps on damages or back pay The NMHRA does not set a statutory cap or limit for compensatory ("actual") damages, back pay, or other monetary remedies. The statute provides open-ended discretion to the court, and no maximum award amount is set by law for these damages. Review of both the operative text and recent session laws confirms no cap exists as of July 2026.

Attorneys' fees—discretionary and uncapped Prevailing complainants are entitled to recover reasonable attorneys' fees and costs under NMSA 1978, § 28-1-13(D), as determined by the court. The fee award is discretionary, but there is no statutory ceiling and no differential treatment based on employer size, public or private employer status, or claim type.

No punitive damages Punitive damages are not available under the NMHRA. The New Mexico Court of Appeals in Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 872 P.2d 859 (Ct. App. 1994), confirmed that the Act does not authorize punitive damages. This remains controlling law.

Transparency requirement for public fund settlements If a state entity settles a Human Rights Act or EEOC case using New Mexico public money to pay damages or attorneys’ fees, the settlement terms must be posted publicly on the Sunshine Portal within 30 days (NMSA 1978, § 10-16D-2.1; SB 317, 2019 session). This is a transparency measure and does not limit recovery amounts.

Summary of available NMHRA remedies:

• Reinstatement or front pay
• Back pay (no cap)
• Compensatory (actual) damages (no cap)
• Equitable/injunctive relief
• Attorneys' fees and costs (no cap)
• No punitive damages
• Transparency disclosure for publicly funded settlements

Source: NMSA 1978, § 28-1-11 Source: NMSA 1978, § 28-1-13(D) Source: Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441 (Ct. App. 1994) Source: NMSA 1978, § 10-16D-2.1