The History and Purpose of the NMHRA

The NMHRA has prohibited discriminatory practices by employers and their agents since 1969.[1] Among other things, the NMHRA makes it unlawful for an employer to discriminate in terms of hiring, firing, promotion, demotion, compensation, terms, conditions, or privileges of employment against any person due to their membership in a protected class.[2] The NMHRA has been described by the Supreme Court of New Mexico as a “comprehensive scheme” whose “primary purpose [is] providing administrative and judicial remedies for unlawful discrimination in the workplace.”[3] The “NMHRA prohibits discrimination in broad terms…[,]”[4] and “seeks to remedy an evil that ‘threatens not only the rights and proper privileges of its inhabitants but menaces the institutes and foundation of a free democratic state.’”[5] As such, “the NMHRA has broad social, political, and economic implications.”[6]
Importantly, the NMHRA attaches to a broader class of people and conduct than its federal counterpart, Title VII of the Civil Rights Act of 1964 (“Title VII”).[7] For example, Title VII defines an employer as one who employees fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.[8] In contrast, New Mexico defines an employer as any person employing four (4) or more persons, or any person acting for an employer, and lists no time requirement regarding how long the employer has been in business at the prescribed level.[9] Unlike Title VII, the moment an employer hires its fourth employee, it becomes subject to NMHRA’s requirements.[10]
Unlike Title VII, the NMHRA provides for individual liability.[11] In Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994) (“Luboyeski”), though the Supreme Court of New Mexico found plaintiff could not sue the individual defendants because she failed to exhaust her administrative remedies against them, the Court acknowledged the possibility of individual liability for discrimination claims, subject to the NMHRA’s exhaustion requirements.[12] In Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 130 N.M. 238, 22 P.3d 1188, the Court made it clear: “the potential for individual liability for discrimination claims is rooted in the language of the NMHRA itself, which forbids ‘any person’ from supporting a discriminatory practice.”[13]
Even government employees can be held individually liable for discriminatory practices under the NMHRA.[14] In Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136, 1191 (D.N.M. 2013) (“Hunt”), two school employees, Plaintiffs Hunt and Ulibarri, claimed the school district discriminated against them on the basis of their religion. Shortly after being hired, Plaintiff Hunt was demoted from Transportation Director to Transportation Coordinator, and then Grounds Maintenance worker.[15] Plaintiff Ullibari’s position as Custodial supervisor was eliminated, and he was moved to a non supervisory position.[16] Neither plaintiff received a reduction in pay.[17] The United States District Court for the District of New Mexico recognized the NMHRA providing for individual liability, and denied motions to dismiss plaintiffs NMHRA disparate treatment claims against the school district superintendent, operations direct, and human resources director.[18]
Furthermore, it appears that, unlike Title VII, New Mexico does not allow a prevailing employer to collect attorneys’ fees for an NMHRA action.[19] While Title VII allows the court in its discretion to “allow the prevailing party… a reasonable attorney’s fee…[,]”[20] the NMHRA only provides discretion to award reasonable attorneys’ fees “if the complainant prevails… .”[21]
As shown above, the NMHRA is broadly interpreted to combat discrimination for New Mexico employees.

[1] See e.g. NMSA § 28-1-7; Lobato v. State Env't Dep't, 2012-NMSC-002, ¶ 8, 267 P.3d 65, 67 (“The NMHRA is a comprehensive scheme enacted in 1969… .”) (“Lobato”).
[2] NMSA § 28-1-7(A).
[3] Id.
[4] Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 15, 309 P.3d 53, 61.
[5] Sabella v. Manor Care, Inc., 1996-NMSC-014, ¶ 18, 121 N.M. 596, 600, 915 P.2d 901, 905.
[6] Id.
[7] 42 USCS § 2000e.
[8] 42 USCS § 2000e(b).
[9] NMSA § 28-1-2(B).
[10] Id.
[11] See Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136, 1191 (D.N.M. 2013)(denying motion to dismiss superintendent, operations director, and human resources director for school district as individual defendants in disparate-treatment NMHRA claim); Sonntag v. Shaw, 2001-NMSC-015, ¶ 13, 130 N.M. 238, 22 P.3d 1188 (“Sonntag”);
[12] Id; Sonntag, 2001-NMSC-015, ¶ 12, (citing Luboyeski for the prospect that “this Court has acknowledged the possibility of individual liability for discrimination claims.”).
[13] Sonntag, 2001-NMSC-015, ¶ 12.
[14] See Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136, 1191 (D.N.M. 2013)(denying motion to dismiss superintendent, operations director, and human resources director for school district as individual defendants in disparate-treatment NMHRA claim).
[15] Hunt, 951 F. Supp. 2d at 1148.
[16] Id.
[17] Id.
[18] Id at 1246-47.
[19] Compare 42 USCS § 2000e-5(k)(providing the court discretion to award attorneys’ fees to a prevailing party) with NMSA § 28-1-13(D)(allowing the court discretion to award a prevailing complainant its attorneys’ fees).
[20] 42 USCS § 2000e-5(k) (emphasis added).
[21] NMSA § 28-1-13(D)

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