New Mexico Human Rights Act — employer threshold
The New Mexico Human Rights Act (NMSA 1978, §§ 28-1-1 to 28-1-15) prohibits employment discrimination. Under the Act, "employer" means any person employing four or more persons and any person acting for an employer. The Human Rights Bureau of the Labor Relations Division of the New Mexico Department of Workforce Solutions enforces the Act.
Source: 9.1.1.7 NMAC
Protected classes under the New Mexico Human Rights Act
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.
Retaliation prohibition under the New Mexico Human Rights Act
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.