Federal & State Regulations | Discrimination - Other - New Mexico

Summary of differences between federal and state regulations

The federally protected classes in employment discrimination include race, color, religion, national origin, age (40 and over), sex (including pregnancy, sexual orientation, and gender identity), disability, and genetic information.

The New Mexico law identifies the following protected classes for purposes of employment discrimination:

Race (includes traits historically associated with race, including hair texture, length of hair, protective hairstyles or cultural or religious headdresses);
Age (29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age),
Religion;
Color;
National origin;
Ancestry;
Sex (a person’s categorization as male, female or intersex based on biology, physiology and physical characteristics);
Sexual orientation (a person’s physical, romantic or emotional attraction to persons of the same or a different gender or the absence of any such attraction);
Gender (an individual or societal expectation or perception of a person as masculine or feminine based on appearance, behavior or physical characteristics);
Gender identity (a person’s self-perception, based on the person’s appearance, behavior or physical characteristics, that the person exhibits more masculinity or femininity or the absence of masculinity or femininity whether or not it matches the person’s gender or sex assigned at birth);
Pregnancy;
Childbirth or condition related to pregnancy or childbirth;
Physical or mental disability;
Serious medical condition;
Military status (a person’s active membership in the armed forces or state defense force or being a veteran of the armed forces or state defense force and includes a spouse or child of an active member or veteran of the armed forces or state defense force);
If the employer has 50 or more employees, spousal affiliation; and
Smoking.

The state also has provisions regarding HIV testing.

CROWN Act

The New Mexico CROWN Act expanded the definition of “race” in the State Human Rights Act to include traits historically associated with race, including hair texture, length of hair, “protective hairstyles” or “cultural headdresses”.

This action makes it unlawful for employers, labor organizations, and employment agencies to discriminate against a person based on hair and headdress.

“Protective hairstyles” includes such hairstyles as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, afros, weaves, wigs or head wraps.

“Cultural or religious headdresses” includes hijabs, head wraps or other headdresses used as part of an individual’s personal cultural or religious beliefs.

Employer defined

“Employer” means any person employing four or more persons and any person acting for an employer, including but not limited to, employment agencies.

Unlawful employment practices

The unlawful employment practices and exemptions for the additional protected classes are essentially the same as those for other protected classes. It is unlawful to refuse to hire, to discharge, or to discriminate in compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of:

serious medical condition;
sexual orientation or gender identity (if the employer has 15 or more employees); or
spousal affiliation (if the employer has 50 or more employees).

New Mexico defines “serious medical condition” as a serious health-related impairment, other than a handicap, which substantially limits one or more of an individual’s major life activities.

It is also unlawful for an employer discriminate against an applicant or employee because the individual is a smoker, provided that the employee complies with applicable laws or policies regulating smoking on the employer’s premises. Employers also may not require employees refrain from smoking during non-work hours.

In addition, no person may require an individual to disclose the results of a human immunodeficiency virus (HIV) related test as a condition of hiring, promotion, or continued employment, unless the absence of HIV infection is a bona fide occupational qualification of the job in question. A person who asserts that a bona fide occupational qualification exists must prove that:

the HIV related test is necessary to ascertain whether an individual is currently able to perform in a reasonable manner the duties of the particular job or whether an individual will present a significant risk of transmitting HIV to other persons in the course of normal work activities; and
there exists no reasonable accommodation short of requiring the test.