New Mexico Pre-Employment Inquiries (Interviewing): What you need to know

The New Mexico Human Rights Act prohibits employers from making inquiries of prospective employees that state or imply any limitation or discrimination on the basis of race, age, religion, color, national origin, ancestry, sex, sexual orientation or gender identity, physical or mental disability, or serious medical condition, unless the inquiry is based on a bona fide occupational qualification (BFOQ). The law applies to employers with four or more employees (NM Stat. Sec. 28-1-1 et seq.). The provisions concerning sexual orientation and gender identity apply to employers with 15 or more employees. If an employer has 50 or more employees, the Act prohibits discrimination on the basis of spousal affiliation.
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BFOQ exception. An employer may make an employment inquiry about one of the characteristics listed above only if it is reasonably necessary to the normal operation of the employer's business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job in question. In order to be a BFOQ, a characteristic must be absolutely essential to the applicant's ability to perform the job. For example, being female would be a legitimate BFOQ for a person applying for a job as a model of women's clothing. The BFOQ exception applies in only limited circumstances, and in general, courts have been extremely reluctant to sanction otherwise discriminatory practices on BFOQ grounds. Employers should use caution in relying on the BFOQ rationale and should always consult with legal counsel before making any inquiries on the basis of a BFOQ.
Human immunodeficiency virus (HIV) status. The New Mexico AIDS Testing Law prohibits the testing for HIV status unless ...

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